                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                  F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                      February 7, 2006

                                                               Charles R. Fulbruge III
                                                                       Clerk
                            No. 05-40105
                          Summary Calendar



UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

versus

FRANCISCO CASTILLO-RODRIGUEZ,

                                        Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                       (5:04-CR-1535-ALL)
                      --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Francisco Castillo-Rodriguez (“Castillo”)

appeals from his guilty-plea conviction for attempted reentry of a

deported alien, in violation of 8 U.S.C. § 1326. Castillo contends

that his sentence should be vacated and remanded because the

district court sentenced him under the mandatory Guidelines scheme

held unconstitutional in United States v. Booker, 125 S. Ct. 738

(2005).   He   also   argues   that   the   district   court   erroneously




     *
       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this opinion should not be published and is not precedent except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.
determined his prior state conviction for simple possession of

cocaine is an aggravated felony.

      As the district court sentenced Castillo under a mandatory

Guidelines regime, it committed Fanfan error. See United States v.

Valenzuela-Quevado, 407 F.3d 728, 733 (5th Cir.), cert. denied, 126

S. Ct. 267 (2005); see also United States v. Walters, 418 F.3d 461,

463   (5th   Cir.   2005)(discussing   the   difference   between   Sixth

Amendment Booker error and Fanfan error).       “[I]f either the Sixth

Amendment issue presented in Booker or the issue presented in

Fanfan is preserved in the district court by an objection, we will

ordinarily vacate the sentence and remand, unless we can say the

error is harmless under Rule 52(a) of the Federal Rules of Criminal

Procedure.”    United States v. Pineiro, 410 F.3d 282, 284-85 (5th

Cir. 2005) (internal quotation marks and citation omitted).           The

government concedes that Castillo’s objection on the basis of

Blakely v. Washington, 542 U.S. 296 (2004), was sufficient to

preserve his Fanfan claim.

      We conclude that the government has not met its burden of

showing beyond a reasonable doubt that the district court would

have imposed the same sentence absent the error.      See Pineiro, 410

F.3d at 286; United States v. Garza, 429 F.3d 165, 170-71 (5th Cir.

2005).   We therefore VACATE Castillo’s sentence and REMAND for re-

sentencing. As the Fanfan error requires remand for re-sentencing,

we need not address the other sentencing error claimed by Castillo.

See United States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).

                                   2
       Castillo also challenges the constitutionality of 8 U.S.C. §

1326(b). His constitutional challenge is foreclosed by Almendarez-

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

Castillo 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).        Castillo forthrightly concedes that his argument is

foreclosed by Almendarez-Torres and circuit precedent, but he

raises    it    here   solely     to     preserve    it    for   further   review.

Accordingly, Castillo’s conviction is AFFIRMED.

       CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.




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