                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 23, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41403
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JESUS ROMERO-FLORES,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 5:04-CR-413-ALL
                       --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Jesus Romero-Flores (Romero) pleaded guilty to unlawfully

re-entering the United States in violation of 8 U.S.C. § 1326(a).

Citing United States v. Booker, 543 U.S. 220 (2005), Romero

first challenges the district court’s imposition of a 16-level

enhancement for a prior felony conviction pursuant to U.S.S.G.

§ 2L1.2.   As the enhancement of Romero’s sentence was based on a

prior conviction, there was no Sixth Amendment Booker error.

Nevertheless, in light of Booker, the application of 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this opinion should not be published and is not precedent except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.04-41403
                                -2-

Guidelines as mandatory was error, which this court has termed

“Fanfan” error.    See United States v. Walters, 418 F.3d 461, 463

(5th Cir. 2005).   We review for harmless error, and we reject

Romero’s contention that “Fanfan” error is structural and,

therefore, insusceptible of harmless error analysis.    See id. at

463-64.

     The Government has failed to carry its burden of showing

harmless error as it has failed to point to anything in the

record that demonstrates “beyond a reasonable doubt that the

district court would not have sentenced [the defendant]

differently had it acted under an advisory Guidelines regime.”

United States v. Akpan, 407 F.3d 360, 376-77 (5th Cir. 2005).

The Government’s assertion that the sentence was reasonable in

light of the factors set forth in 18 U.S.C. § 3553(a), is

insufficient to carry the Government’s burden.    See, e.g.,

Walters, 418 F.3d at 465-66.

     Romero also asserts that the enhanced penalty provisions of

8 U.S.C. § 1362(b) are unconstitutional.   Romero’s constitutional

challenge is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998).   Although Romero contends that

Almendarez-Torres was incorrectly decided and that a majority of

the Supreme Court would overrule Almendarez-Torres in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly

rejected such arguments on the basis that Almendarez-Torres

remains binding.   See United States v. Garza-Lopez, 410 F.3d 268,
                           No.04-41403
                               -3-

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).   Romero

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.

     For the foregoing reasons, we AFFIRM Romero’s conviction.

We VACATE his sentence and REMAND to the district court for re-

sentencing.

     AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR RE-

SENTENCING.
