                                                                                         United States Court of Appeals
                                                                                                  Fifth Circuit
                                                                                               F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                                 March 8, 2006
                                   FOR THE FIFTH CIRCUIT
                                                                                           Charles R. Fulbruge III
                                                                                                   Clerk


                                            No. 04-41703
                                          Summary Calendar



UNITED STATES OF AMERICA,

                                                                                          Plaintiff-
                                                          Appellee,

                                                 versus

JOSE CRISTOBAL GARCIA,

                                                                                     Defendant-Appellant.

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                           Appeal from the United States District Court
                                  for the Southern District of Texas
                                    USDC No. 2:04-CR-322-ALL
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

       Jose Cristobal Garcia appeals his sentence for illegal reentry into the United States following

deportation, 8 U.S.C. § 1326(a) and (b). Garcia argues that his sentence must be vacated and his

case remanded for resentencing because the district court committed reversible error by sentencing

him pursuant to a mandatory Sentencing Guidelines regime in light of United States v. Booker, 543

U.S. 220 (2005).

       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
          The district court’s sentence pursuant to a mandatory guidelines scheme constitutes Fanfan

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

bears the burden of proving beyond a reasonable doubt that the district court would have imposed

the same sentence had the Guidelines been advisory only. See id. at 464. If the Government cannot

show that the error was harmless, this court ordinarily will vacate and remand for resentencing. Id.

at 463.

          The sentencing transcript is silent with regard to whether the district court would have

imposed the same sentence had the Guidelines been advisory and the Government so concedes. The

Government cannot meet its burden. See id. at 464-66. Accordingly, we vacate Garcia’s sentence

and remand the case for resentencing.

          Garcia also challenges the constitutionality of § 1326(b)’s t reatment of prior felony and

aggravated felony convictions as sentencing factors rather than elements of the offense that must be

found by a jury in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Garcia’s constitutional

challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although

Garcia 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. 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).

Garcia 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, Garcia’s conviction

is affirmed.

          CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
