                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                         F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                          November 28, 2006

                                                                     Charles R. Fulbruge III
                                                                             Clerk
                                No. 04-41752
                              Summary Calendar



UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

versus

LUIS ALBERTO GARCIA-GALEANO,

                                             Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 2:04-CR-462-ALL
                         --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Luis Alberto Garcia-Galeano appeals his guilty-plea conviction

and sentence for illegal reentry into the United States following

deportation     in     violation   of    8    U.S.C.   §   1326(a)      and    (b).

Garcia-Galeano 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 violation of United States v.

Booker, 543 U.S. 220 (2005).            He also contends that his sentence


     *
       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this opinion should not be published and is not precedent except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. 04-41752
                                  -2-

pursuant to a mandatory Guidelines regime was a structural error.

Garcia-Galeano concedes that his claim of structural error is

foreclosed    by   circuit    precedent,    see   United   States   v.

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

S. Ct. 464 (2005), but he raises the argument here to preserve it

for further review.

       Garcia-Galeano’s sentence pursuant to a mandatory Sentencing

Guidelines regime constitutes Fanfan error.       See United States v.

Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).         Garcia-Galeano

preserved his Fanfan challenge in the district court by raising an

objection based on Blakely v. Washington, 542 U.S. 296 (2004), and

the Government so concedes.     See United States v. Rodriguez-Mesa,

443 F.3d 397, 404 (5th Cir. 2006).     We review a preserved Fanfan

challenge for harmless error.     Walters, 418 F.3d at 463-64; cf.

United States v. Mendoza-Blanco, 440 F.3d 264, 265 n.7 (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.

       The sentencing transcript is silent on whether the district

court would have imposed the same sentence under an advisory

Guidelines scheme.    The Government thus has not met its burden

of establishing beyond a reasonable doubt that the district court’s

error was harmless.   See id.   We therefore vacate Garcia-Galeano’s
                                  No. 04-41752
                                       -3-

sentence and remand the case for resentencing in accordance with

Booker.

      Garcia-Galeano next argues, in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), that the 57-month term of imprisonment

imposed in his case exceeds the statutory maximum sentence allowed

for the § 1326(a) offense charged in his indictment. He challenges

the constitutionality of § 1326(b)’s treatment of prior felony and

aggravated felony convictions as sentencing factors rather than

elements of the offense that must be found by a jury.

      Garcia-Galeano’s constitutional challenge is foreclosed by

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

Although he contends that Almendarez-Torres was incorrectly decided

and   that   a   majority    of     the   Supreme   Court   would    overrule

Almendarez-Torres in 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).             Garcia- Galeano 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-Galeano’s

conviction is affirmed.

      CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
