                                                                                        United States Court of Appeals
                                                                                                 Fifth Circuit
                                                                                              F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                                March 6, 2006
                                  FOR THE FIFTH CIRCUIT
                                                                                           Charles R. Fulbruge III
                                                                                                   Clerk


                                           No. 04-41279
                                         Summary Calendar


UNITED STATES OF AMERICA,

                                                                                         Plaintiff-
                                                          Appellee,

                                                 versus

JESUS GONZALEZ-SILVA, also known as Martin Garcia-Salaiza,

                                                                                       Defendant-
                                                          Appellant.

                      --------------------------------------------------------------
                           Appeal from the United States District Court
                                 for the Southern District of Texas
                                   USDC No. 5:04-CR-847-ALL
                      --------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

       Jesus Gonzalez-Silva appeals from his guilty-plea conviction and sentence for attempting to

illegally reenter the United States after having been previously removed. He was sentenced to 70

months of imprisonment and three years of supervised release. Gonzalez-Silva asserts that his

sentence




       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
is invalid in light of United States v. Booker, 543 U.S. 220 (2005). Because the district court

sentenced Gonzalez-Silva 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 Gonzalez-Silva 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 Gonzalez-Silva 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. The Government thus cannot meet

its burden. Accordingly, Gonzalez-Silva’s sentence is vacated and the case is remanded for

resentencing.

       Gonzalez-Silva’s constitutional challenge is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998). Although Gonzalez-Silva contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court 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). Gonzalez-Silva 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.

       CONVICTION          AFFIRMED;        SENTENCE        VACATED;         REMANDED          FOR

RESENTENCING.




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