                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 10, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-40026
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FERNANDO CARMONA-CALDERON,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-860-1
                      --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Fernando Carmona-Calderon appeals his sentence under 8

U.S.C. § 1326(a) and (b) for illegal reentry into the United

States after having been deported following conviction for an

aggravated felony.   He asserts two bases for the appeal.

     First, Carmona-Calderon asserts that the district court’s

belief at the time of sentencing that the United States

Sentencing Guidelines were mandatory, rather than advisory,

requires reversal by this court under United States v. Booker,


     *
       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this opinion should not be published and is not precedent except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. 05-40026
                                 -2-

125 S. Ct. 738 (2005).    Because Carmona-Calderon preserved the

Fanfan error in the district court, we apply a harmless error

standard of review.   See United States v. Mares, 402 F.3d 511,

520 n.9 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

     The Government has not met its burden of proving that the

district judge would have imposed the same sentence under an

advisory guidelines regime.    See United States v. Walters, 418

F.3d 461, 463-65 (5th Cir. 2005).    Carmona-Calderon’s sentence is

thus vacated, and the case is remanded to the district court for

resentencing in accordance with Booker.

     Carmona-Calderon also maintains that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b) are

unconstitutional.   This issue is foreclosed by Almendarez-Torres

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

Calderon contends that Almendarez-Torres was incorrectly decided

and that a majority of the Supreme Court would overrule it 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).

Carmona-Calderon 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.

     AFFIRMED IN PART, VACATED IN PART AND REMANDED.
