                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 15, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41399
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ARTURO RAFAEL PUENTE-SOLIS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-880-ALL
                      --------------------

Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

     Arturo Rafael Puente-Solis pleaded guilty to attempted re-

entry of a deported alien in violation of 8 U.S.C. § 1326 and was

sentenced to 62 months of imprisonment and three years of

supervised release.

     Puente-Solis’s constitutional challenge to 8 U.S.C. § 1326

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

224, 235 (1998).   Although Puente-Solis contends that

Almendarez-Torres was incorrectly decided and that a majority of


     *
       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this opinion should not be published and is not precedent except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. 04-41399
                                 -2-

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).    Puente-

Solis 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, Puente-Solis’s

conviction is AFFIRMED.

       Puente-Solis contends that his sentence must be vacated

because he was sentenced pursuant to mandatory sentencing

guidelines that were held unconstitutional in United States v.

Booker, 125 S. Ct. 738 (2005).    He asserts that the error is

structural and is insusceptible of harmless error analysis.

Contrary to Puente-Solis’s contention, we have previously

rejected this specific argument.     See United States v. Walters,

418 F.3d 461, 463 (5th Cir. 2005).

       In the alternative, Puente-Solis contends that the

Government cannot show that the Fanfan error was harmless.       We

review Puente-Solis’s preserved challenge to his sentence for

harmless error under FED. R. CRIM. P. 52(a).   Walters, 418 F.3d at

463.

       Puente-Solis was sentenced at the middle of the guideline

range, and the district court provided no commentary regarding

the sentence that it imposed.    The record provides no indication,
                           No. 04-41399
                                -3-

and the Government has not shown, that the district court would

not have sentenced Puente-Solis differently under an advisory

guidelines system.   See United States v. Garza, 429 F.3d 165,

170-71 (5th Cir. 2005).   Accordingly, Puente-Solis’s sentence is

VACATED, and his case is REMANDED for further proceedings

consistent with this opinion.

     CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR

RESENTENCING.
