                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 8, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41030
                         Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JUAN MANUEL JACINTO-LARA,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-602-1
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Juan Manuel Jacinto-Lara (Jacinto) appeals his conviction

and the sentence he received after he pleaded guilty to illegal

reentry following deportation.   Jacinto argues that his sentence

is illegal under United States v. Booker, 543 U.S. 220, 125

S. Ct. 738 (2005), because it was imposed pursuant to a mandatory

application of the federal Sentencing Guidelines.

     The erroneous application of the Guidelines as mandatory is

technically a “Fanfan error.”    United States v. Martinez-Lugo,


     *
       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this opinion should not be published and is not precedent except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. 04-41030
                                -2-

411 F.3d 597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464

(2005); see Booker, 125 S. Ct. at 750, 768-69.     The Government

concedes that Jacinto preserved his Fanfan claim for appeal.        The

Government fails to meet its burden of proving that the district

court’s sentence under Guidelines it deemed mandatory was

harmless beyond a reasonable doubt because the Government fails

to cite to any record evidence showing that the district court

would have imposed the same sentence under an advisory guidelines

scheme.   See United States v. Walters, 418 F.3d 461, 464 (5th

Cir. 2005); United States v. Garza, 429 F.3d 165, 171 (5th Cir.

2005) (Booker error).   We therefore vacate the sentence and

remand the case for resentencing in accordance with Booker.

     Jacinto argues that the district court misapplied U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) when it enhanced his sentence because his

South Carolina state conviction for second-degree burglary does

not qualify as a “crime of violence.”     Given that the entire

sentence is vacated, this court need not reach Jacinto’s

argument.   See United States v. Akpan, 407 F.3d 360, 377 n.62

(5th Cir. 2005).   Rather, we leave to the district court’s

discretion which enhancements it will apply upon resentencing.

See id.

     Jacinto also argues that the enhancement provisions set

forth in 8 U.S.C. § 1326(b) are unconstitutional.     As he

concedes, this argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998), which this court must follow
                            No. 04-41030
                                 -3-

“unless and until the Supreme Court itself determines to overrule

it.”    United States v. Izaguirre-Flores, 405 F.3d 270, 277-78

(5th Cir.) (quotation marks omitted), cert. denied, 126 S. Ct.

253 (2005).    The judgment of conviction is affirmed.

       CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
