                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 9, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41554
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

LUIS MANUEL DUENAS-ALEMAN,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-657-ALL
                      --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Luis Manuel Duenas-Aleman (“Duenas”) appeals his sentence

from a guilty-plea conviction for reentry of a deported alien, in

violation of 8 U.S.C. § 1326.   Duenas argues that his sentence

should be vacated and remanded because the district court

sentenced him under the mandatory Guidelines scheme held

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

     Because the district court sentenced Duenas under a

mandatory Guidelines regime, it committed Fanfan error.       See


     *
       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this opinion should not be published and is not precedent except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. 04-41554
                                 -2-

United States v. Valenzuela-Quevado, 407 F.3d 728, 733 (5th

Cir.), cert. denied, 126 S. Ct. 267 (2005); see also United

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

the difference between Sixth Amendment Booker error and Fanfan

error).   “[I]f either the Sixth Amendment issue presented in

Booker or the issue presented in Fanfan is preserved in the

district court by an objection, we will ordinarily vacate the

sentence and remand, unless we can say the error is harmless

under Rule 52(a) of the Federal Rules of Criminal Procedure.”

United States v. Pineiro, 410 F.3d 282, 284-85 (5th Cir. 2005)

(internal quotation marks and citation omitted).   The Government

concedes that Duenas’s objection on the basis of Blakely v.

Washington, 542 U.S. 296 (2004), was sufficient to preserve his

Fanfan claim.

     We conclude that the Government has not met its burden of

showing beyond a reasonable doubt that the district court would

have imposed the same sentence absent the error.   See Pineiro,

410 F.3d at 286; United States v. Garza, 429 F.3d 165, 170-71

(5th Cir. 2005).   We therefore VACATE Duenas’s sentence and

REMAND for re-sentencing.

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

§ 1326(b).   His constitutional challenge is foreclosed by

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

Although Duenas contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule
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                                -3-

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).   Duenas 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.   Accordingly, Duenas’s conviction is AFFIRMED.

     CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
