                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                         May 30, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 04-21010
                             Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

FRANCISCO JAVIER ARCHUNDIA,
also known as Francisco Archundia,
also known as Francisco Javier Archundia-Mendoza,
also known as Francisco Javier Archundia-Bustos,

                                         Defendant-Appellant.


                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                         No. 4:04-CR-342-ALL
                        --------------------



Before SMITH, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Francisco Archundia appeals his conviction of and sentence for

illegal reentry following deportation. He argues that the district

court committed reversible error under United States v. Booker, 543

U.S. 220 (2005), by sentencing him pursuant to a mandatory appli-

cation of the sentencing guidelines.          The government argues that



     *
        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opinion should not be published and is not precedent except under the limited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. 04-21010
                                -2-

Archundia has not preserved this issue for appeal, but because the

district court, sua sponte, addressed the issue of the effect of

Blakely v. Washington, 542 U.S. 296 (2004), on the sentencing

guidelines, we review the district court’s “Fanfan” error under the

harmless error standard of review. See United States v. Rodriguez,

15 F.3d 408, 414 (5th Cir. 1994) (noting that the purpose of an

objection is to bring an issue to the attention of the district

court so that it “may correct itself and thus, obviate the need for

[this court’s] review”)(internal quotation marks and citation omit-

ted)); see United States v. Rodriguez-Mesa, 443 F.3d 397, 404 (5th

Cir. 2006) (stating that a Blakely objection in the district court

preserves a Fanfan error for appeal).

     The government has not shown beyond a reasonable doubt that

the error was harmless.    See United States v. Walters, 418 F.3d

461, 463-64 (5th Cir. 2005).   Accordingly, Archundia’s sentence is

vacated, and this case is remanded for resentencing.

     Archundia argues that the district court erred in ordering, as

a condition of supervised release, that he cooperate with collec-

tion of a DNA sample.   We determined that this issue is not ripe

for review in United States v. Riascos-Cuenu, 428 F.3d 1100, 1102

(5th Cir. 2005), petition for cert. filed, (Jan. 9, 2006) (No.

05-8662).   Accordingly, the appeal of this issue is dismissed for

want of jurisdiction.

     Archundia’s constitutional challenge to 8 U.S.C. § 1326(b) is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
                           No. 04-21010
                                -3-

(1998). Although Archundia contends that Almendarez-Torres was in-

correctly decided and that a majority of the Supreme Court would

overrule Almendarez-Torres in light of Apprendi, we have repeatedly

rejected such arguments on the basis that Almendarez-Torres remains

binding.   See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th

Cir.), cert. denied, 126 S. Ct. 298 (2005).     Archundia properly

concedes that his argument is foreclosed in light of Almendarez-

Torres and circuit precedent, but he raises it here to preserve it

for further review.

     CONVICTION    AFFIRMED;   SENTENCE   VACATED;   REMANDED   FOR

RESENTENCING; APPEAL DISMISSED IN PART.
