                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                        F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                                March 9, 2006

                                                                     Charles R. Fulbruge III
                                                                             Clerk
                               No. 04-40958
                             Summary Calendar



                         UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                     versus

                          LEONARDO ENRIQUE CRUZ,

                                                      Defendant-Appellant.

            Appeal from the United States District Court
                 for the Southern District of Texas
                          (1:04-CR-152-ALL)

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Leonardo Enrique Cruz appeals his guilty-plea conviction and

sentence   for   being     present    in   the   United     States     following

deportation. Cruz claims that the district court erred in applying

Sentencing Guidelines § 2L1.2(b)(1)(A)(vii) because transportation

of illegal aliens is not “alien smuggling”.               Cruz concedes this

claim is foreclosed by United States v. Solis-Campozano, 312 F.3d

164, 167-68 (5th Cir. 2002), which held “alien smuggling offense”

includes the offense of transporting aliens within the United

States.    He raises this issue to preserve it for further review.


     *
       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this opinion should not be published and is not precedent except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.
      Cruz also claims the district court 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    (Sixth

Amendment     violation)     because       the    only      enhancement     to   Cruz’s

sentence was for his prior conviction.                   See Booker, 125 S. Ct. at

756, 769.      Nevertheless, the district court committed “Fanfan”

error by sentencing Cruz pursuant to a mandatory guidelines system.

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

A Fanfan error is not structural error.                          See United States v.

Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.), cert. denied, 126 S.

Ct. 464 (2005).

      The Government concedes that Cruz preserved his Fanfan claim.

Accordingly, we review for harmless error beyond a reasonable

doubt.     See Walters, 418 F.3d at 464.              There is no evidence in the

record that the district court would have imposed the same sentence

had the guidelines been advisory.                     Accordingly, we vacate the

sentence and remand for resentencing.

      Cruz   contends      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 the light of Apprendi

v.   New   Jersey,   530    U.S.     466       (2000).       Cruz’s    constitutional

challenge is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998).             Although Cruz contends that Almendarez-

                                            2
Torres was incorrectly decided and that a majority of the Supreme

Court   would   overrule   it   in   the   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).                Cruz

properly concedes that his claim is foreclosed; he raises it to

preserve it for further review.

     CONVICTION AFFIRMED; SENTENCE VACATED; AND REMANDED FOR

     RESENTENCING




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