                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 23, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-40971
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ARTURO DE LA GARZA,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:03-CR-970-1
                       --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Arturo De La Garza was convicted pursuant to a guilty plea

of inducing an alien to enter the United States, bringing an

alien into the United States, and transporting an alien within

the United States.    He argues that the sentences imposed in his

case are unconstitutional and should be vacated because they were

imposed under the mandatory United States Sentencing Guidelines

held unconstitutional in United States v. Booker, 543 U.S. 220

(2005).


     *
       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this opinion should not be published and is not precedent except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. 04-40971
                                  -2-

     By sentencing De La Garza under a mandatory sentencing

guidelines regime, the district court committed what this court

refers to as Fanfan error.    See United States v. Walters, 418

F.3d 461, 463-64 (5th Cir. 2005).    The Government concedes that

De La Garza preserved his Fanfan claim for appellate review.       A

Fanfan error is not structural error.       Thus, this court reviews

the district court’s actions for harmless error.       See id.

     At De La Garza’s sentencing hearing, the district court

noted that if the United States Sentencing Guidelines were held

unconstitutional it would impose the same term of imprisonment it

had previously imposed.   In light of that statement, the

Government has carried its burden of establishing that the

district court’s sentencing error was harmless.       See id. at 464;

United States v. Saldana, 427 F.3d 298, 314-15 (5th Cir.), cert.

denied, 126 S. Ct. 810 (2005), cert. denied, 2006 WL 37834 (Jan.

9, 2006) (No. 05-7803).

     The judgment of the district court is AFFIRMED.
