                                                         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. 04-41544
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

VALENTIN MENDOZA-CONTRERAS,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 5:04-CR-1242-ALL
                          --------------------

Before KING, DeMOSS and PRADO, Circuit Judges.

PER CURIAM:*

     Valentin Mendoza-Contreras (Mendoza) pleaded guilty to

unlawfully re-entering the United States in violation of 8 U.S.C.

§ 1326(a).     Citing United States v. Booker, 125 S. Ct. 738

(2005), Mendoza first challenges the district court’s imposition

of a 16-level enhancement for a prior felony conviction pursuant

to U.S.S.G. § 2L1.2.    Although an enhancement based on a prior

conviction does not violate the Sixth Amendment, the application

of the Guidelines as mandatory was error, which we have termed


     *
       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this opinion should not be published and is not precedent except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. 04-41544
                                 -2-

“Fanfan” error.    See United States v. Walters, 418 F.3d 461, 463

(5th Cir. 2005).   As Mendoza preserved the error, we review for

harmless error, and we reject Mendoza’s contention that “Fanfan”

error is structural and, therefore, insusceptible of harmless

error analysis.    See id. at 463-64.

     The Government has failed to carry its burden of showing

harmless error as it has failed to point to anything in the

record that demonstrates “beyond a reasonable doubt that the

district court would not have sentenced [Mendoza] differently had

it acted under an advisory Guidelines regime.”     United States v.

Akpan, 407 F.3d 360, 377 (5th Cir. 2005).    The fact that, as the

Government argues, the district court imposed a sentence in the

middle of the Guidelines, took into account the appropriate

sentencing factors, and considered imposing a higher sentence

sheds little light on what the district court would have done

under an advisory Guidelines system.    See, e.g., United States v.

Garza, 429 F.3d 165, 170-71 (5th Cir. 2005).     To the contrary,

the sentence may simply reflect what the district court believed

was an appropriate sentence within the then-mandatory Guidelines

framework.   See id.

     Mendoza also asserts that the enhanced penalty provisions of

8 U.S.C. § 1362(b) are unconstitutional.    Mendoza’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).    Although Mendoza

contends that Almendarez-Torres was incorrectly decided and that
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                                -3-

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).

Mendoza 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.

     For the foregoing reasons, we AFFIRM Mendoza’s conviction.

We VACATE his sentence and REMAND to the district court for re-

sentencing.
