                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 26, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41496
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN CARLOS SANTANA-ALVARADO,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-1078-ALL
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Juan Carlos Santana-Alvarado appeals his 46-month sentence

following his guilty-plea conviction for being unlawfully present

in the United States after having been deported, a violation of

8 U.S.C. § 1326.   The indictment did not allege that Santana-

Alvarado’s deportation was subsequent to a felony or aggravated-

felony conviction, and it did not specifically cite to any

subsection of 18 U.S.C. § 1326.   In pertinent part, the

sentencing guideline base offense level was increased sixteen


     *
       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this opinion should not be published and is not precedent except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. 04-41496
                               -2-

levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because Santana-

Alvarado was previously deported after a state deferred-

adjudication conviction for aggravated assault with a deadly

weapon, a crime of violence.   Santana-Alvarado objected to this

increase on the basis of Apprendi v. New Jersey, 530 U.S. 466

(2000), and Blakely v. Washington, 124 S. Ct. 2531 (2004).

     Santana-Alvarado challenges the constitutionality of 8

U.S.C. § 1326(b)’s treatment of prior felony and aggravated

felony convictions as sentencing factors rather than elements of

the offense that must be found by a jury.    This constitutional

challenge is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235, 239-47 (1998).    Although Santana-Alvarado

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).    Santana-Alvarado 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.

     Santana-Alvarado also argues that the district court

committed reversible error when it sentenced him pursuant to the

mandatory sentencing guidelines system held unconstitutional in

United States v. Booker, 125 S. Ct. 738 (2005).    The Government
                               No. 04-41496
                                    -3-

concedes that Santana-Alvarado’s objection on the basis of

Blakely preserved this issue.        Because the district court

sentenced Santana-Alvarado under a mandatory guidelines regime,

it committed Fanfan error.       See United States v. Valenzuela-

Quevado, 407 F.3d 728, 733 (5th Cir.), cert. denied, 126 S. Ct.

267 (2005); see also United States v. Walters, 418 F.3d 461, 463

(5th Cir. 2005) (discussing the difference between Sixth

Amendment Booker error and Fanfan error).

        “Thus, the only question is whether the Government has met

its burden to show harmless error beyond a reasonable doubt in

the imposition of [Santana’s] sentence.”          Walters, 418 F.3d at

464.1       Santana-Alvarado concedes that his argument that the error

was structural in nature and thus not subject to harmless-error

review is foreclosed by United States v. Martinez-Lugo, 411 F.3d

597, 601 (5th Cir.), cert. denied, 126 S. Ct. 464 (2005), but he

raises the argument to preserve it for further review.             We are

not persuaded by the Government’s argument that the error was

harmless, particularly in light of the district court’s lack of




        1
        Although we must follow the panel’s decision in Walters, United States
v. Ruiz, 180 F.3d 675, 676 (5th Cir. 1999), we note that the standard of
review it applied - requiring the Government to show that preserved Fanfan
error was harmless beyond a reasonable doubt - was not contested in the case
and appears to be incorrect because Fanfan error is nonconstitutional error,
see United States v. Hughes, 410 F.3d 540, 553 (4th Cir. 2005) (pointing out
that Fanfan error, unlike Booker error, is nonconstitutional). Rather,
“harmless error” in Fanfan cases is defined by the standard announced in
Kotteakos v. United States, 328 U.S. 750, 776 (1946). See United States v.
Hernandez-Guevara, 162 F.3d 863, 876 (5th Cir. 1998) (applying Kotteakos to
preserved nonconstitutional error). But the issue is irrelevant here because
the Government cannot meet either burden.
                          No. 04-41496
                               -4-

clear commentary regarding the sentence and its decision to

sentence at the bottom of the applicable guideline range.

     Accordingly, we VACATE Santana-Alvarado’s sentence and

REMAND to the district court for re-sentencing.
