                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              March 1, 2006
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 04-41682
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ANTONIO ALTATO-PUES, also known as Lucho
Gatica-Rodriguez,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:03-CR-1770-ALL
                       --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     Antonio Altato-Pues (Altato) appeals the sentence imposed

upon his guilty-plea conviction for transporting illegal aliens

via motor vehicle into the United States.      See 8 U.S.C. § 1324.

Altato argues that under United States v. Booker, 543 U.S. 220

(2005), the district court was not authorized to increase his

sentence based on its factual finding that he recklessly

endangered the lives of his alien passengers.     Both the


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                            No. 04-41682
                                 -2-

Government and Altato contest whether Altato admitted the facts

supporting the reckless endangerment adjustment.   However,

neither party provided this court with a transcript of the

rearraignment proceeding.   Absent the transcript, this court

cannot review this claim.   See e.g., United States v. Holmes, 406

F.3d 337, 366 & n.49 (5th Cir.), cert. denied, 126 S. Ct. 375

(2005).

     The district court, however, committed “Fanfan” error by

sentencing Altato pursuant to a mandatory guidelines scheme.      See

United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).

The Government concedes that Altato preserved his Fanfan claim.

As such, this court reviews the claim for harmless error.      See

Walters, 418 F.3d at 464.   This court has rejected the argument

that a Fanfan error is structural.    See Walters, 418 F.3d at 463.

     There is no indication in the record that the district court

would have imposed the same sentence had the guidelines been

advisory rather than mandatory.   The Government has not satisfied

its burden of showing that the district court’s Fanfan error was

harmless beyond a reasonable doubt.   See Walters, 418 F.3d at

463-64.   Accordingly, we vacate the sentence and remand for

resentencing in accordance with Booker.

     This court need not address at this time Altato’s remaining

argument challenging the district court’s denial of his request

for a downward departure.   See United States v. Akpan, 407 F.3d

360, 377 n.62 (5th Cir. 2005).
                     No. 04-41682
                          -3-

SENTENCE VACATED AND REMANDED.
