                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                      F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                        February 16, 2006

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                               No. 04-41231
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                        RUBEN SANCHEZ HERNANDEZ,

                                                     Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 1:04-CR-329-ALL
                        --------------------

Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.

PER CURIAM:*

     Ruben Sanchez-Hernandez (Sanchez) pleaded guilty to illegal

reentry after     deportation    and   was   sentenced   to   57    months     of

imprisonment, three years of supervised release, and a $100 special

assessment that was ordered remitted on the Government’s motion.

     Sanchez argues that the district court committed reversible

error when it sentenced him pursuant to the mandatory federal

Sentencing Guidelines system held unconstitutional in United States

v. Booker, 543 U.S. 220 (2005).        The erroneous application of the


     *
            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opinion should not be published and is not precedent except under the limited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.
guidelines as mandatory is technically a “Fanfan error.”                          See

United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.), cert.

denied, 126 S. Ct. 464 (2005).                  The Government concedes that

Sanchez preserved his Fanfan claim for appeal and that the issue is

reviewed for    harmless       error.        See     United    States   v.   Walters,

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

     Sanchez argues that he is entitled to resentencing because

application of the Sentencing Guidelines as mandatory constituted

structural error.       However, this issue is foreclosed.                   See id.

Sanchez also contends that the record does not disclose that the

district court’s error was harmless beyond a reasonable doubt. The

Government    argues    that    any     error      by   the    district   court   was

harmless.    However, in support of this assertion, the Government

contends only that the district court acted reasonably in taking

into account the Sentencing Guidelines and the presentence report

when it sentenced Sanchez.            The sentencing transcript is silent

with regard to whether the district court would have applied the

same sentence had the Guidelines been advisory only.                    Furthermore,

Sanchez’s 57-month term of imprisonment is at the bottom of the

applicable    guideline    range.            Under      such   circumstances,     the

Government has not met its burden of proving the error harmless

beyond a reasonable doubt.              See id.         We therefore VACATE the

sentence and REMAND for resentencing in accordance with Booker.

            Sanchez’s   constitutional          challenge       is   foreclosed    by

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

                                         2
Although Sanchez 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).      Sanchez   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.              The judgment

of conviction is AFFIRMED.

              CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.




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