                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 27, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41308
                         Summary Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

MARIO REYES-SOTELO,

                                      Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 5:04-CR-668-ALL
                       --------------------

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Mario Reyes-Sotelo (Reyes) appeals his conviction and 41-

month sentence for attempted illegal reentry.     See 8 U.S.C.

§ 1326.   Reyes argues that under United States v. Booker, 543

U.S. 220 (2005), his sentence must be vacated and his case

remanded for resentencing.   He asserts that the district court

sentenced him pursuant to mandatory Sentencing Guidelines and

that the error was not harmless.   Reyes asserts, in addition,

that § 1326(b) is unconstitutional.



     *
       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this opinion should not be published and is not precedent except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. 04-41308
                               -2-

     The district court’s sentence pursuant to a mandatory

guidelines scheme constitutes Fanfan error.    See United States v.

Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).    The sentencing

transcript is silent regarding whether the district court would

have imposed the same sentence had the Guidelines been advisory.

Thus, the Government has not met its burden of proving beyond a

reasonable doubt that the district court would have imposed the

same sentence under mandatory Guidelines.     See United States v.

Zamora-Vallejo, 470 F.3d 592, 595 (5th Cir. 2006)(internal

quotations and citation omitted).

     Reyes argues that § 1326(b) is unconstitutional.    Reyes’s

constitutional challenge to § 1326(b) is foreclosed by

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

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005).   Reyes properly concedes

that his argument is foreclosed in light of Almendarez-Torres and

circuit precedent and raises it here only to preserve it for

further review.

     Accordingly, we AFFIRM Reyes’s conviction, VACATE his

sentence, and REMAND the case for resentencing.
