                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 21, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-40178
                           Summary Calendar



UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

LUIS HERNANDEZ-FRANCO, also known as Luis Hernandez,

                     Defendant - Appellant

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:04-CR-69-ALL
                       --------------------

Before KING, WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

     Luis Hernandez-Franco (Hernandez) pleaded guilty to one

count of being unlawfully present in the United States after

having been deported previously.    Pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(ii), the district court imposed a 16-level

enhancement on the basis that Hernandez had been deported

following a felony conviction for a crime of violence.       Hernandez

objected to the enhancement, asserting that it violated his Sixth

Amendment rights in light of Blakely v. Washington, 542 U.S. 296


     *
       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this opinion should not be published and is not precedent except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. 05-40178
                                 -2-

(2004).   The district court overruled the objection but granted a

downward departure after concluding that Hernandez’s criminal

history category was over-represented.     The district court

sentenced Hernandez to 70 months in prison, below the pre-

departure range of 77 to 96 months.

     Hernandez appeals, arguing that his sentence should be

vacated in light of United States v. Booker, 125 S. Ct. 738

(2005), which extended Blakely’s Sixth Amendment rule to the

Federal Sentencing Guidelines.   He also asserts that the enhanced

penalty provisions of 8 U.S.C. § 1326(b) are unconstitutional.

     With respect to Hernandez’s Booker argument, there was no

Sixth Amendment violation because the only enhancement of his

sentence was based on a prior conviction.     See Booker, 125 S. Ct.

at 756.   Nevertheless, the application of the Guidelines as

mandatory was error, which we have termed “Fanfan” error.       See

United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005)

(discussing the distinction between the two types of error

addressed in Booker).   This court reviews a preserved “Fanfan”

error for harmless error.   See id.   We reject Hernandez’s

argument that such error is structural and not amenable to

harmless error analysis.    See id.

     Under the harmless error standard, “[t]he government must

bear the burden of demonstrating that the error was harmless by

demonstrating beyond a reasonable doubt that the federal

constitutional error of which a defendant complains did not
                             No. 05-40178
                                  -3-

contribute to the sentence that he received.”       United States v.

Akpan, 407 F.3d 360, 377 (5th Cir. 2005); see also Walters, 418

F.3d at 463.   This burden has been described as “arduous,”

requiring the Government to show “beyond a reasonable doubt that

the district court would have imposed the same sentence under an

advisory scheme.”    United States v. Pineiro, 410 F.3d 282, 285,

287 (5th Cir. 2005).    We decline the Government’s invitation to

apply a different standard.     See Walters, 418 F.3d at 464.

     In seeking to satisfy its burden, the Government first

points to the district court’s downward departure.      However,

although a court has “virtually complete” discretion in deciding

the extent of a departure, see United States v. Alvarez, 51 F.3d

36, 41 (5th Cir. 1995), the exercise of that discretion does not

necessarily mean that the mandatory nature of the Guidelines had

no effect on the sentencing decision.       “[E]ven a discretionary

departure decision is informed by the Guidelines and thus sheds

little light on what a sentencing judge would have done knowing

that the guidelines were advisory.”     United States v. Garza, 429

F.3d 165, 171 (5th Cir. 2005) (internal quotation marks and

citation omitted).     See also United States v. Waskom, 179 F.3d

303, 312 (5th Cir. 1999) (guidelines calculation error was not

harmless even though district court departed below the corrected

guidelines range, as the extent of the departure could have been

affected by the error).    Accordingly, the grant of a downward
                            No. 05-40178
                                 -4-

departure is insufficient, standing alone, to satisfy the

Government’s burden of demonstrating harmless error.

     We also reject the Government’s argument that any error was

harmless because the sentence was reasonable under Booker.

Reasonableness is not the standard we apply in the context of

“Fanfan” error, and it tells us nothing about what the district

court would have done had it been operating under an advisory

sentencing regime.   See Walters, 418 F.3d at 464-65 (giving no

weight to Government’s contention that error was harmless because

the sentence was reasonable).   As for the Government’s contention

that the district court expressed no dissatisfaction with the

Guidelines, the district court’s silence regarding its views on

the Guidelines is plainly insufficient to satisfy the

Government’s arduous burden of showing harmless error.   See

Pineiro, 410 F.3d at 286.

     In sum, there is nothing in the record that demonstrates

beyond a reasonable doubt that the district court would have

imposed the same sentence if the Guidelines had been advisory

rather than mandatory.   Accordingly, we must vacate Hernandez’s

sentence and remand this matter for resentencing.

     Hernandez’s constitutional challenge to § 1326(b) is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998).   Although Hernandez 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
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                               -5-

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).   Hernandez 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 Hernandez’s conviction.

We VACATE his sentence and REMAND this matter to the district

court for resentencing.
