                                                       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. 04-41611
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MARTIN BONILLA-FRAGOSO,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-1082-1
                       --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Martin Bonilla-Fragoso appeals his 41-month sentence for

illegal reentry into the United States following deportation in

violation of 8 U.S.C. § 1326(b).   Bonilla-Fragoso argues that the

district court committed reversible error by sentencing him

pursuant to a mandatory sentencing guidelines regime in light of

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).         He

also contends that, because the district court imposed the lowest

possible sentence under the guidelines, with little explanation,


     *
       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this opinion should not be published and is not precedent except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. 04-41611
                                  -2-

and his criminal history consisted of a single conviction, the

district court may have concluded that his 41-month sentence was

excessive under an advisory guidelines regime.     Bonilla-Fragoso

contends that the district court’s error thus was not harmless.

     Bonilla-Fragoso’s challenge to the district court’s

mandatory application of the Sentencing Guidelines does not

implicate the Sixth Amendment and instead alleges the type of

error that the district court committed in sentencing Ducan

Fanfan, one of the defendants in Booker.     See United States v.

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

126 S. Ct. 267 (2005).     The Government concedes that

Bonilla-Fragoso preserved a claim of Fanfan error, but asserts

that the error was harmless.

     The imposition of Bonilla-Fragoso’s sentence under the

then-mandatory guideline sentencing regime constituted error, and

the Government thus bears the burden of proving beyond a

reasonable doubt that the district court would not have sentenced

Bonilla-Fragoso differently under an advisory guideline

sentencing regime.     See United States v. Walters, 418 F.3d 461,

464 (5th Cir. 2005).    This court noted in United States v. Garza,

429 F.3d 165, 170 (5th Cir. 2005), that it had found Booker

errors harmless in two circumstances--first, when the district

court stated that it would have imposed the same sentence in the

absence of mandatory guidelines, and second, when the district

court explicitly refused to allow the defendant to serve his
                            No. 04-41611
                                 -3-

federal sentence concurrently with his state sentence.    Garza,

429 F.3d at 170.    Neither of those circumstances is present in

Bonilla-Fragoso’s case.    Nor is there any indication in the

record that the district court would have imposed the same

sentence had the guidelines been advisory rather than mandatory.

See Walters, 484 F.3d at 464-66.

     Bonilla-Fragoso also challenges the constitutionality of

§ 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).    Bonilla-Fragoso’s constitutional

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

523 U.S. 224, 235 (1998).    Although Defendant 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).    Bonilla-Fragoso properly concedes that his

argument is foreclosed in light of Almendarez-Torres and circuit

precedent, but he raises it here to preserve it for further

review.   Accordingly, Bonilla-Fragoso’s conviction is affirmed,

his sentence is VACATED, and the case is REMANDED for

resentencing.

     CONVICTION AFFIRMED; VACATED AND REMANDED FOR RESENTENCING.
