                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 23, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41687
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

LUIS ANDRES MEDINA-ZAVALA, also known as Wilson Paecido,
also known as Ever Quinones,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                    USDC No. 5:04-CR-1172-ALL
                       --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Luis Medina-Zavala (Medina) appeals his conviction and the

57-month sentence he received after he pleaded guilty to illegal

reentry.   Medina argues that his sentence is illegal under United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because it

was imposed pursuant to a mandatory application of the federal

Sentencing Guidelines.

     The erroneous application of the Guidelines as mandatory is

technically a “Fanfan error.”   United States v. Martinez-Lugo,

     *
       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this opinion should not be published and is not precedent except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. 04-41687
                                 -2-

411 F.3d 597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464

(2005); see Booker, 125 S. Ct. at 750, 768-69.    The Government

concedes that Medina preserved his Fanfan claim for appeal and

that the issue is reviewed for harmless error.    See United States

v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).    The Government

also concedes that, given the district court’s acknowledgment

that Medina raised good points challenging his criminal history

computation and the court’s statement that it “got no

satisfaction” in sentencing Medina, the district court’s error in

sentencing Medina under mandatory Guidelines was not harmless.

Because the Government fails to meet its burden of showing that

the district court’s error was harmless beyond a reasonable

doubt, we vacate the sentence and remand the case for

resentencing in accordance with Booker.

       Medina also argues 8 U.S.C. § 1326 is unconstitutional.    As

he concedes, this argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998), which this court must follow

“unless and until the Supreme Court itself determines to overrule

it.”    United States v. Izaguirre-Flores, 405 F.3d 270, 277-78

(5th Cir.) (quotation marks omitted), cert. denied, 126 S. Ct.

253 (2005).    The judgment of conviction is affirmed.

       CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
