                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 8, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41677
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JESUS FRANCISCO MORALES-AGUSTINE,

                                    Defendant-Appellant.


                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-921-ALL
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jesus Francisco Morales-Agustine (Morales) appeals the 80-

month sentence imposed following his guilty-plea conviction of

illegal reentry into the United States after being deported.

     Morales contends that his sentence is illegal under United

States v. Booker, 543 U.S. 220 (2005), because it was imposed

pursuant to a mandatory application of the United States

Sentencing Guidelines.   He thus alleges a “Fanfan” error.       See

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

Fanfan error is not a structural error.     Id.   However, the


     *
       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this opinion should not be published and is not precedent except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. 04-41677
                                  -2-

Government concedes that the Fanfan error was preserved, so we

review for harmless error.    See id. at 464.   The Government has

failed to carry its burden of showing beyond a reasonable doubt

that the district court’s Fanfan error had no effect Morales’s

sentence.   See id.   We therefore vacate the sentence and remand

for resentencing in accordance with Booker.     See id.

     Morales contends that the sentence-increasing provisions of

8 U.S.C. § 1326(b) are unconstitutional and that this court

should remand his case for resentencing to no more than two years

in prison under 8 U.S.C. § 1326(a).    As he concedes, this

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

523 U.S. 224, 235 (1998).

     CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.
