                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                      F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                         March 28, 2006

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                               No. 04-41525
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                  versus

    JESUS ARMANDO ZUNIGA-ALCALA, true name Armando
    Zuniga-Alcala, also known as Jesus Armando Zuniga, also
    known as Jesus Ramon Garcia, also known as Armando Garcia,

                                                       Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 5:04-CR-942-ALL
                        --------------------

Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*

     Jesus Armando Zuniga-Alcala (Zuniga) appeals his conviction

and the 30-month sentence he received after he pleaded guilty to

illegal reentry in violation of 8 U.S.C. § 1326.             Zuniga 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

     *
            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opinion should not be published and is not precedent except under the limited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.
Guidelines.

      The erroneous application of the Guidelines as mandatory is

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

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 Zuniga preserved his Fanfan claim for appeal.         The Government

falls short of meeting 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.

      Zuniga also argues that the enhancement provisions set forth

in 8 U.S.C. § 1326(b) are unconstitutional.         As he concedes, this

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

523 U.S. 224 (1998), which this court must follow “unless and until

the Supreme Court itself determines to overrule it.” United States

v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.) (quotation

marks omitted), cert. denied, 126 S. Ct. 253 (2005).         The judgment

of conviction is affirmed.

           CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.

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