                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 2, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40034
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

                              versus

                   MIGUEL ANGEL GONZALEZ-VARGAS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                   USDC No. 5:04-CR-1519-ALL
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Miguel Angel Gonzalez-Vargas appeals his sentence from a

guilty-plea conviction for reentry of a deported alien.           See 8

U.S.C. § 1326(b)(1).    Gonzalez-Vargas argues that his sentence

should be vacated and remanded because the district court sentenced

him under a mandatory Guideline scheme held unconstitutional in

United States v. Booker, 125 S. Ct. 738 (2005).

     As the Government concedes, Gonzalez-Vargas’s “Fanfan” claim

is reviewed for harmless error.   See United States v. Walters, 418


     *
       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this opinion should not be published and is not precedent except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. 05-40034
                                   -2-

F.3d 461, 464 (5th Cir. 2005).    The instant record fails to provide

clear commentary from the district court regarding whether it would

have imposed the same sentence under a post-Booker environment.

See id.    Accordingly, the district court’s “Fanfan” error was not

harmless on the instant record.     See id.

     Gonzalez-Vargas 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    Gonzalez-Vargas   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-Vargas 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.

     We    VACATE   Gonzalez-Vargas’s    sentence    and   REMAND   for

resentencing.
