                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 19, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-40050
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FARID ARTURO CANIZALEZ-RIVERA,

                                    Defendant-Appellant.


                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-1332-1
                       --------------------


Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

     Farid Arturo Canizalez-Rivera appeals the conviction and

sentence imposed following his guilty plea to unlawful presence

in the United States after having been deported, in violation of

8 U.S.C. § 1326.   Canizalez-Rivera contends 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.    Canizalez-

Rivera, thus, alleges a “Fanfan” error.     See United States v.



     *
       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this opinion should not be published and is not precedent except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. 05-40050
                                 -2-

Walters, 418 F.3d 461, 463 (5th Cir. 2005).   In the district

court, Canizalez-Rivera objected to his sentence under Blakely v.

Washington, 542 U.S. 296 (2004), and the Government concedes that

the preserved Fanfan error is subject to review for harmless

error.

     The Government has not carried its burden of showing beyond

a reasonable doubt that the district court’s error did not affect

Canizalez-Rivera’s sentence.    See Walters, 418 F.3d at 464;

United States v. Pineiro, 410 F.3d 282, 284-86 (5th Cir. 2005).

We therefore VACATE the sentence and REMAND for resentencing in

accordance with Booker.

     Canizalez-Rivera also contends that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b) are

unconstitutional.   Canizalez-Rivera’s constitutional challenge is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998).   Although Canizalez-Rivera 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,

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

Rivera 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.

     Accordingly, the judgment of conviction is AFFIRMED.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.
