                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                 UNITED STATES COURT OF APPEALS
                          FIFTH CIRCUIT                    November 17, 2005

                                                        Charles R. Fulbruge III
                                                                Clerk
                           No. 04-41546
                         Summary Calendar


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                               versus

                     MAXIMINO NINO-RODRIGUEZ,

                                                Defendant-Appellant.


           Appeal from the United States District Court
                for the Southern District of Texas
                         (5:04-CR-959-ALL)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Maximino Nino-Rodriguez appeals the sentence imposed following

his guilty-plea conviction of illegally re-entering the United

States after having been deported, in violation of 8 U.S.C. § 1326.

The district court sentenced Nino to 41 months in prison and three

years of supervised release.

     Nino claims his sentence is illegal under United States v.

Booker, 125 S. Ct. 738 (2005), because it was imposed pursuant to

a mandatory application of the Sentencing Guidelines.     In district

     *
        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that this opinion should not be published and is not precedent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.
court, Nino objected to his sentence under Blakely v. Washington,

124 S. Ct. 2531 (2004).   He now raises the type of error raised by

a second respondent in Booker, Ducan Fanfan (Fanfan error), by

claiming that imposition of a sentence pursuant to a mandatory

Guidelines regime violated his rights.     See Booker, 125 S. Ct. at

750, 768-69.   The Government concedes that Nino at least “arguably”

preserved his Fanfan-error claim for appeal and that the issue is

reviewed for harmless error.    The Government explicitly waives any

argument that the Fanfan error at Nino’s sentencing was harmless and

does not oppose a remand for resentencing in accordance with Booker.

     For the first time on appeal, Nino contends that the “felony"

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

unconstitutional.   As Nino concedes, this argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), which this

court must follow “unless and until the Supreme Court itself

determines to overrule it”.    United States v. Izaguirre-Flores, 405

F.3d 270, 277-78 (5th Cir.) (internal quotation marks and citation

omitted), cert. denied, ___ S. Ct. ___, 2005 WL 1786638 (U.S. 3 Oct.

2005).

AFFIRMED IN PART; VACATED AND REMANDED IN PART FOR RESENTENCING.
