                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                 UNITED STATES COURT OF APPEALS
                          FIFTH CIRCUIT                     March 17, 2006

                                                        Charles R. Fulbruge III
                                                                Clerk
                           No. 05-40027
                         Summary Calendar



                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              versus

                   CONSTANTINO PADRON-BALDERAS,

                                                Defendant-Appellant.

          Appeal from the United States District Court
               for the Southern District of Texas
                         (5:04-CR-691-1)

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Constantino Padron-Balderas (Padron) appeals his guilty-plea

conviction and 60-month sentence for illegal reentry into the

United States following deportation.   Padron claims that 8 U.S.C.

§ 1326(b) is unconstitutional because it treats prior felony and

aggravated felony convictions as sentencing factors.         Padron’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).    Although Padron contends

that Almendarez-Torres was incorrectly decided and that a majority

of the Supreme Court would overrule Almendarez-Torres in the light

     *
       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this opinion should not be published and is not precedent except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.
of Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly

rejected such arguments Almendarez-Torres remains binding.                   See

United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.

denied, 126 S. Ct. 298 (2005).          Padron properly concedes that his

argument is foreclosed in the light of Almendarez-Torres and

circuit precedent; he raises it to preserve it for further review.

     Padron   also    contends      that   the    district   court   erred   in

sentencing    him    under    the     mandatory     guideline   regime   held

unconstitutional in United States v. Booker, 543 U.S. 220 (2005)

(Fanfan error).      Because Padron preserved the issue in district

court, the Government must show the Fanfan error was harmless

beyond a reasonable doubt.          See United States v. Walters, 418 F.3d

461, 463 (5th Cir. 2005).          The sentencing transcript is devoid of

evidence that the district court would have imposed the same

sentence under an advisory regime; therefore, the Government has

not borne its burden.        Id.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING
