                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 22, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41154
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

LEONEL ENCARNACION-MALDONADO, also known as Leonel
Encarnacion-Estrada,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:04-CR-266-ALL
                      --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Leonel Encarnacion-Maldonado appeals from his guilty-plea

conviction and sentence for being present in the United States

after having been previously removed.   He was sentenced to 37

months of imprisonment and two years of supervised release.

Encarnacion-Maldonado’s constitutional challenge is foreclosed by

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

Although Encarnacion-Maldonado contends that Almendarez-Torres

was incorrectly decided and that a majority of the Supreme Court

     *
       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this opinion should not be published and is not precedent except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. 04-41154
                                -2-

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).   Encarnacion-Maldonado

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.

     Encarnacion-Maldonado asserts that his sentence is invalid

in light of United States v. Booker, 543 U.S. 220 (2005).

Because the district court sentenced Encarnacion-Maldonado under

a mandatory guidelines regime, it committed a Fanfan error.     See

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

Because the Government concedes that Encarnacion-Maldonado

preserved his Fanfan claim, this court reviews for harmless

error.   Id.; United States v. Mares, 402 F.3d 511, 520 (5th

Cir.), cert. denied, 126 S. Ct. 43 (2005).   Under this standard

of review, the Government bears the burden of proving beyond a

reasonable doubt that the district court would not have sentenced

Encarnacion-Maldonado differently under an advisory guidelines

sentencing regime.   Walters, 418 F.3d at 464.

     The record contains no indication that the district court

would have imposed the same sentence absent the error.   Although

the district court stated an alternative sentence it would have

imposed in the absence of the Sentencing Guidelines, that
                             No. 04-41154
                                  -3-

alternative sentence was more lenient than the imposed sentence.

The Government thus cannot meet its burden.   Accordingly,

Encarnacion-Maldonado’s sentence is vacated and the case is

remanded for resentencing.

     CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.
