                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                        March 2, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                             No. 05-40139
                           Summary Calendar



                       UNITED STATES OF AMERICA,

                          Plaintiff-Appellee,

                                 versus

                           LUIS LARA-VIEGAS,

                         Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. 5:04-CR-1652-1
                         --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Luis Lara-Viegas appeals his conviction and sentence for

illegal reentry after a previous deportation.         Lara-Viegas argues

that the district reversibly erred under United States v. Booker,

543 U.S. 220, 125 S. Ct. 738 (2005), by sentencing him pursuant to

a mandatory application of the Sentencing Guidelines.

     There was no “Booker” error or Sixth Amendment violation

because the only enhancement to Lara-Viegas’s sentence was for his

prior    conviction.     See   Booker,    125   S.   Ct.   at    756,    769.


     *
       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this opinion should not be published and is not precedent except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. 05-40139
                                      -2-

Nevertheless,   the    district     court   committed   “Fanfan”      error    by

sentencing Lara-Viegas pursuant to a mandatory guidelines scheme.

See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).

Although Lara-Viegas contends that such error is structural, he

acknowledges that this argument is foreclosed by circuit precedent;

he raises the issue here only for preservation purposes.

     The Government concedes that Lara-Viegas preserved his Fanfan

claim.    As such, this court reviews the claim for harmless error.

See Walters, 418 F.3d at 464.       There is no indication in the record

that the district court would have imposed the same sentence had

the guidelines been advisory rather than mandatory.                Accordingly,

we vacate the sentence and remand for resentencing in accordance

with Booker.

     Lara-Viegas next argues that the “felony” and “aggravated

felony”   provisions    of   8    U.S.C.    §   1326(b)(1)   and    (b)(2)    are

unconstitutional on their face and as applied in his case in light

of Apprendi v. New Jersey, 530 U.S. 466 (2000).                Lara-Viegas’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).               Although Lara-Viegas

contends that Almendarez-Torres was incorrectly 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).           Lara-Viegas properly concedes that his
                           No. 05-40139
                                -3-

argument is foreclosed in light of Almendarez-Torres and circuit

precedent, but he raises it here to preserve it for further review.

Accordingly, Lara-Viegas’s conviction is affirmed.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.
