                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                February 21, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-11036
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ARMANDO DURAN,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 3:04-CR-69-ALL-M
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Armando Duran appeals his conviction and sentence for

illegal reentry after a previous deportation.    Duran 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 Duran’s sentence was for his

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


     *
       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this opinion should not be published and is not precedent except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. 04-11036
                                -2-

Nevertheless, the district court committed “Fanfan” error by

sentencing Duran pursuant to a mandatory guidelines scheme.      See

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

     The Government concedes that Duran 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.

     Duran next argues that his sentence is unconstitutional

under Apprendi v. New Jersey, 530 U.S. 466 (2000), because it was

based on the facts of a prior conviction what were not alleged in

the indictment, admitted by Duran, or proved to a jury beyond a

reasonable doubt.   Duran’s constitutional challenge is foreclosed

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

Duran properly concedes that his argument is foreclosed in light

of Almendarez-Torres, but he raises it here to preserve it for

further review.   Accordingly, Duran’s conviction is affirmed.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.
