                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 1, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40114
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

HECTOR DE LA GARZA-ROJAS,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-1642-ALL
                       --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     Hector De La Garza-Rojas (De La Garza) appeals his

conviction and sentence for illegal reentry after a previous

deportation.   De La Garza argues that the district reversibly

erred under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005), by sentencing him pursuant to a mandatory application of

the Sentencing Guidelines.

     There was no “Booker” error or Sixth Amendment violation

because the only enhancement to De La Garza’s sentence was for


     *
       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this opinion should not be published and is not precedent except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. 05-40114
                                  -2-

his prior conviction.   See Booker, 125 S. Ct. at 756, 769.

Nevertheless, the district court committed “Fanfan” error by

sentencing De La Garza pursuant to a mandatory guidelines scheme.

See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.

2005).   Although De La Garza contends that such error is

structural, he acknowledges that this argument is foreclosed by

circuit precedent; he raises the issue here only for preservation

purposes.

     The Government concedes that De La Garza preserved his

Fanfan claim.   As such, this court reviews the claim for harmless

error.   See Walters, 418 F.3d at 464.      There is no indication in

the record that the district court would have imposed the same

sentence had the guidelines been advisory rather than mandatory.

Accordingly, we VACATE the sentence and REMAND for resentencing

in accordance with Booker.

     De La Garza next argues that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are

unconstitutional on their face and as applied in his case in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000).       De La

Garza’s constitutional challenge is foreclosed by Almendarez-

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

La Garza 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
                           No. 05-40114
                                -3-

remains binding.   See United States v. Garza-Lopez, 410 F.3d 268,

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).   De La Garza

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, De La Garza’s

conviction is AFFIRMED.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.
