                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 15, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41166
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JESUS HERNANDEZ-PEREZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:04-CR-432-ALL
                       --------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jesus Hernandez-Perez appeals his guilty-plea conviction and

sentence for illegal reentry following deportation in violation

of 8 U.S.C. § 1326.   He contends that the district court

committed reversible error when it sentenced him pursuant to the

mandatory United States Sentencing Guidelines held

unconstitutional in United States v. Booker, 543 U.S. 220, 125

S. Ct. 738 (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this opinion should not be published and is not precedent except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. 04-41166
                                  -2-

     The district court erred when it sentenced Hernandez-Perez

pursuant to a mandatory guidelines system.     See United States v.

Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert. denied,

126 S. Ct. 267 (2005).   This error was more like that experienced

by the other respondent in Booker, Ducan Fanfan.     See United

States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.), cert.

denied, 126 S. Ct. 464 (2005).     Because Hernandez-Perez preserved

his Fanfan challenge in the district court by raising an

objection based on Blakely v. Washington, 542 U.S. 296 (2004), we

review for harmless error.     See United States v. Garza, 429 F.3d

165, 170 (5th Cir. 2005) (Booker error).     The Government bears

the burden of proving beyond a reasonable doubt that the district

court would not have sentenced Hernandez-Perez differently under

an advisory guidelines system.     See United States v. Walters, 418

F.3d 461, 464 (5th Cir. 2005).

     The sentencing transcript is silent with regard to whether

the district court would have applied the same sentence had the

Guidelines been advisory rather than mandatory.     Further,

although the district court believed there was no basis to depart

from the Guidelines, that fact alone “sheds little light on what

the sentencing judge would have done knowing that the

[G]uidelines were advisory.”     Garza, 429 F.3d at 171 (quotation

marks and citation omitted).     Therefore, the Government has

failed to carry its burden of showing beyond a reasonable doubt

that the error did not affect Hernandez-Perez’s sentence.        See
                            No. 04-41166
                                 -3-

id. at 170-71.    We therefore vacate Hernandez-Perez’s sentence

and remand the case for resentencing.

     Hernandez-Perez also 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 in light of Apprendi v.

New Jersey, 530 U.S. 466 (2000).

     Hernandez-Perez’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Hernandez-Perez 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).   Hernandez-Perez properly concedes that his

argument is foreclosed in light of Almendarez-Torres and circuit

precedent, but raises it here to preserve it for further review.

     CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
