                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 1, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40060
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN ROCHA, also known as Javier Anselmo Hernandez,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                   USDC No. 5:04-CR-1204-ALL
                      --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     Juan Rocha, also known as Javier Anselmo Hernandez, appeals

his guilty-plea conviction and sentence for illegal reentry

following deportation in violation of 8 U.S.C. § 1326.       He

contends that the district court committed reversible error when

it sentenced him pursuant to the mandatory United States

Sentencing Guidelines system held unconstitutional in United

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




     *
       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this opinion should not be published and is not precedent except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. 05-40060
                                  -2-

     The district court erred when it sentenced Rocha pursuant to

a mandatory Guidelines system.    See United States v.

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

126 S. Ct. 267 (2005).   This error was more like that experienced

by the other respondent in Booker, Ducan Fanfan.    See United

States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.), cert.

denied, 126 S. Ct. 464 (2005).    Because Rocha preserved his

Fanfan challenge in the district court by raising an objection

based on Blakely v. Washington, 542 U.S. 296 (2004), we review

for harmless error.   United States v. Walters, 418 F.3d 461, 463

(5th Cir. 2005).   The Government bears the burden of proving

beyond a reasonable doubt that the district court would not have

sentenced Rocha differently under an advisory Guidelines system.

See id. at 464.

     The mere fact that the district court sentenced Rocha to the

middle of the applicable Guidelines range, standing alone, fails

to satisfy the Government’s burden of proving harmless error

beyond a reasonable doubt.    See United States v. Garza, 429 F.3d

165, 170-71 (5th Cir. 2005) (Booker error).    Further, the

sentencing transcript is silent with regard to whether the

district court would have applied the same sentence had the

Guidelines been advisory rather than mandatory.    Therefore, the

Government has failed to carry its burden of showing beyond a

reasonable doubt that the error did not affect Rocha’s sentence.
                            No. 05-40060
                                 -3-

See id.   We therefore vacate Rocha’s sentence and remand the case

for resentencing.

     Rocha also challenges the constitutionality of 8 U.S.C.

§ 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).

     Rocha’s constitutional challenge is foreclosed by

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

Although Rocha contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi, 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).     Rocha

properly concedes that his argument is foreclosed in light of

Almendarez-Torres and circuit precedent, but raises it here to

preserve it for further review.

     CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
