                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 13, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-41398
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

WILBER GONZALEZ-RIBERA,

                                    Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 5:04-CR-512-ALL
                        --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Wilber Gonzalez-Ribera appeals his sentence following his

guilty-plea conviction for being a previously deported alien

found illegally in the United States.   Gonzalez-Ribera argues

that the district court’s enhancement of his sentence under

U.S.S.G. § 2L1.2(b)(1)(C) violated United States v. Booker, 125

S. Ct. 738 (2005).   He argues that the district court’s

sentencing error was structural and so prejudice should be

presumed.   We have explicitly rejected the argument that such an


     *
       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this opinion should not be published and is not precedent except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. 04-41398
                                  -2-

error is a “structural” one for which prejudice should be

presumed.   See United States v. Martinez-Lugo, 411 F.3d 597, 601

(5th Cir.), cert. denied, 126 S. Ct. 464 (2005).

     Alternatively, Gonzalez-Ribera argues that the Government

cannot show beyond a reasonable doubt that the district court

would have imposed the same sentence if the Sentencing Guidelines

had been advisory.     Because Gonzalez-Ribera preserved his

“Fanfan” challenge in the district court by raising an objection

based on Blakely v. Washington, 542 U.S. 296 (2004), we review

for harmless error.     See United States v. Walters, 418 F.3d 461,

463 (5th Cir. 2005).    The imposition of Gonzalez-Ribera’s

sentence under the then-mandatory guideline sentencing regime

constitutes error, and the Government thus bears the burden of

proving beyond a reasonable doubt that the district court would

not have sentenced Gonzalez-Ribera differently under an advisory

guideline sentencing regime.      See id. at 464.

     The district court’s comments at sentencing, read as a

whole, do not establish the Government’s burden of proving beyond

a reasonable doubt that the district court would not have

sentenced Gonzalez-Ribera differently under an advisory guideline

sentencing regime.     See id.   Accordingly, Gonzalez-Ribera’s

sentence is vacated and the case remanded to the district court

for resentencing.

     Gonzalez-Ribera also argues that the statutory maximum

sentence in his case was two years because he pleaded guilty to
                           No. 04-41398
                                -3-

simple illegal reentry under 8 U.S.C. § 1326(a) and not the

twenty-year maximum sentence contained in 8 U.S.C. § 1326(b).    He

acknowledges that his argument is foreclosed by Almendarez-Torres

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

     The Supreme Court has not overruled Almendarez-Torres, and

this court must follow Almendarez-Torres “‘unless and until the

Supreme Court itself determines to overrule it.’”   United States

v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir. 2003) (citation

omitted).   Thus, as Gonzalez-Ribera concedes, his argument is

foreclosed.

     CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR

RESENTENCING.
