                                                       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. 04-11370
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE ANGEL HERNANDEZ-LAZARO,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                   USDC No. 3:04-CR-176-ALL-R
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose Angel Hernandez-Lazaro was convicted of illegal reentry

into the United States and sentenced to serve 42 months in prison

and a two-year term of supervised release.   He first argues on

appeal that 8 U.S.C. § 1326(b) is unconstitutional.     Hernandez-

Lazaro’s constitutional challenge is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998).     Although

Hernandez-Lazaro 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.

     *
       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this opinion should not be published and is not precedent except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. 04-11370
                                 -2-

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).    Hernandez-Lazaro 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.

     Hernandez-Lazaro’s argument that the Due Process and Ex Post

Facto Clauses bar the application of Justice Breyer’s remedy

opinion in United States v. Booker, 125 S. Ct. 738 (2005), when

resentencing defendants in light of Booker is foreclosed by our

prior caselaw.    See United States v. Scroggins, 411 F.3d 572,

576-77 (5th Cir. 2005).

     Hernandez-Lazaro contends that his sentence should be

vacated and remanded because the district court sentenced him

under the mandatory guidelines scheme held unconstitutional in

United States v. Booker, 125 S. Ct. 738 (2005).    Because the

district court sentenced Hernandez-Lazaro under a mandatory

guidelines regime, it committed Fanfan error.     See United States

v. Walters, 418 F.3d 461, 463 (5th Cir. 2005).    When a Fanfan

error “is preserved in the district court by an objection, we

will ordinarily vacate the sentence and remand, unless we can say

the error is harmless.”    United States v. Mares, 402 F.3d 511,

520 n.9 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).    The

Government concedes that this claim was preserved and that it
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                               -3-

cannot show that the Fanfan error that occurred in the instant

case was harmless.

     We agree that the Government cannot meet its burden of

showing beyond a reasonable doubt that the district court would

have imposed the same sentence absent the error.   See United

States v. Garza, 429 F.3d 165, 170-71 (5th Cir. 2005).   We

therefore vacate Hernandez-Lazaro’s sentence and remand for re-

sentencing.

     CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
