                                                                                          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. 04-41404
                                          Summary Calendar



UNITED STATES OF AMERICA,

                                                                                            Plaintiff-
                                                           Appellee,

                                                  versus

FRANCISCO GUTIERREZ-MENDEZ,

                                                                                      Defendant-
                                                           Appellant.

                     ------------------------------------------------------------------
                            Appeal from the United States District Court
                                  for the Southern District of Texas
                                    USDC No. 5:04-CR-911-ALL
                     ------------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

       Francisco Gutierrez-Mendez (Gutierrez) appeals the sentence imposed upon his guilty-plea

conviction for illegal reentry. 8 U.S.C. § 1326. Gutierrez argues that the district court reversibly

erred under United States v. Booker, 125 S. Ct. 738 (2005), by sentencing him pursuant to a

mandatory application of the Sentencing Guidelines.



       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
        There was no “Booker” error or Sixth Amendment violation because the only enhancement

to Gutierrez’s sentence was for his prior conviction.        See Booker, 125 S. Ct. at 756, 769.

Nevertheless, the district court committed “Fanfan” error by sentencing Gutierrez pursuant to a

mandatory guidelines scheme. See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).

        The Government concedes that Gutierrez preserved his Fanfan claim. As such, this court

reviews the claim for harmless error. See Walters, 418 F.3d at 464. This court has rejected the

argument that a Fanfan error is structural. See Walters, 418 F.3d at 463.

        There is no indication in the record that the district court would have imposed the same

sentence had the guidelines been advisory rather than mandatory. The Government has not satisfied

its burden of showing that the district court’s Fanfan error was harmless beyond a reasonable doubt.

See Walters, 418 F.3d at 463-64. Accordingly, we vacate the sentence and remand for resentencing

in accordance with Booker.

        Gutierrez argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. §

1326(b)(1) and (b)(2) are unconstitutional on their face and as applied in his case in light of Apprendi

v. New Jersey, 530 U.S. 466 (2000).          Gutierrez’s constitutional challenge is foreclosed by

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

Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi, 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). Gutierrez 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. Accordingly, Gutierrez’s conviction is affirmed.


                                                 -2-
       This court need not address at this time Gutierrez’s remaining argument challenging the

district court’s denial of his request for a downward departure. See United States v. Akpan, 407 F.3d

360, 377 n.62 (5th Cir. 2005).

       AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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