                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 25, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-41520
                           Summary Calendar



UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

ROBERTO SALAZAR-PALACIOS

                     Defendant - Appellant


                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-992-ALL
                      --------------------


Before KING, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Roberto Salazar-Palacios (“Salazar”) appeals the sentence

imposed following his guilty-plea conviction of attempting to

reenter the United States after having been deported, in

violation of 8 U.S.C. § 1326.    The district court sentenced

Salazar to 46 months in prison, based on a prior drug-trafficking

conviction.

     Salazar contends that his sentence is illegal under United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because it



     *
       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this opinion should not be published and is not precedent except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. 04-41520
                                  -2-

was imposed pursuant to a mandatory application of the federal

sentencing guidelines.    Salazar thus alleges a “Fanfan” error.

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

In the district court, Salazar objected to his sentence under

Blakely v. Washington, 542 U.S. 296 (2004), and the Government

concedes that the preserved Fanfan error is subject to review for

harmless error.

     The Government has not carried its burden of showing beyond

a reasonable doubt that the district court’s error did not affect

Salazar’s sentence.     See Walters, 418 F.3d 461, 464; United

States v. Pineiro, 410 F.3d 282, 286 (5th Cir. 2005).    We

therefore VACATE the sentence and REMAND for resentencing in

accordance with Booker.     See Walters, 418 F.3d at 464; Pineiro,

410 F.3d at 286.

     Salazar also contends that the “felony” and “aggravated

felony” provisions of 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).    Accordingly, the judgment of conviction is

AFFIRMED.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.
