                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 3, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41080
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                        Plaintiff-Appellee,

                                versus

                      MANUEL ESTRADA-GARCIA,

                       Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-634-1
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Manuel Estrada-Garcia (Estrada) appeals his conviction and

the sentence he received after he pleaded guilty to one count of

illegal reentry following deportation.   Estrada argues that his

sentence is illegal under United States v. Booker, 543 U.S. 220,

125 S. Ct. 738 (2005), because it was imposed pursuant to a

mandatory application of the federal Sentencing Guidelines.

     The erroneous application of the Guidelines as mandatory is

technically a “Fanfan error.”    United States v. Martinez-Lugo,


     *
       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this opinion should not be published and is not precedent except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. 04-41080
                                -2-

411 F.3d 597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464

(2005); see Booker, 125 S. Ct. at 750, 768-69.   The Government

concedes that Estrada preserved his Fanfan claim for appeal.      The

Government fails to meet its burden of proving that the district

court’s sentence under Guidelines it deemed mandatory was

harmless beyond a reasonable doubt because the Government fails

to cite to any record evidence showing that the district court

would have imposed the same sentence under an advisory guidelines

scheme.   See United States v. Walters, 418 F.3d 461, 464 (5th

Cir. 2005); United States v. Garza, 429 F.3d 165, 171 (5th Cir.

2005) (Booker error).   We therefore vacate the sentence and

remand the case for resentencing in accordance with Booker.

     Estrada also challenges the term of supervised release that

was imposed on the basis that the enhancement provisions set

forth in § 1326(b) are unconstitutional.   Given that Estrada’s

entire sentence is vacated, this court need not reach this

argument.   See United States v. Akpan, 407 F.3d 360, 377 n.62

(5th Cir. 2005).

     SENTENCE VACATED; CASE REMANDED.
