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

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                               No. 04-41379
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                        CELESTINO TORRES-VILLA,

                                                     Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 5:04-CR-712-ALL
                         --------------------

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

PER CURIAM:*

     Celestino Torres-Villa (Torres) pleaded guilty to unlawfully

re-entering the United States in violation of 8 U.S.C. § 1326(a).

Citing United States v. Booker, 543 U.S. 220 (2005), Torres first

challenges     the   district   court’s    imposition     of     a    16-level

enhancement for a prior felony conviction pursuant to U.S.S.G.

§ 2L1.2.     As the enhancement of Torres’s sentence was based on a

prior conviction, there was no Sixth Amendment Booker error.

Nevertheless, in light of Booker, the application of the Guidelines


     *
            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opinion should not be published and is not precedent except under the limited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.
as mandatory was error, which this court has termed “Fanfan” error.

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

We review for harmless error, and we reject Torres’s contention

that “Fanfan” error is structural and, therefore, insusceptible of

harmless error analysis.      See id. at 463-64.

      The Government has failed to carry its burden of showing

harmless error as it has failed to point to anything in the record

that demonstrates “beyond a reasonable doubt that the district

court would not have sentenced [Torres] differently had it acted

under an advisory Guidelines regime.”              United States v. Akpan,

407 F.3d 360, 376-77 (5th Cir. 2005).        The Government’s assertions

that the error was harmless because the sentence was properly

calculated under the Guidelines, the sentence was reasonable in

light of 18 U.S.C. § 3553(a), and the district court indicated no

dissatisfaction with the Guidelines, are insufficient to carry the

Government’s burden.       See Walters, 418 F.3d at 465-66; United

States v. Pineiro, 410 F.3d 282, 286 (5th Cir. 2005).

      Torres also asserts that the enhanced penalty provisions of

8 U.S.C. § 1362(b) are unconstitutional.           Torres’s constitutional

challenge is foreclosed by Almendarez-Torres v. United States,

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

                                    2
binding.   See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th

Cir.), cert. denied, 126 S. Ct. 298 (2005).        Torres 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.

     For the foregoing reasons, we AFFIRM Torres’s conviction.   We

VACATE his sentence and REMAND to the district court for re-

sentencing.




                                 3
