                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 9, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-40132
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

SAUL VILLEDA-TAVERA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:04-CR-595-ALL
                      --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Saul Villeda-Tavera (Villeda) appeals following his

guilty-plea conviction for being found in the United States after

a previous deportation, in violation of 8 U.S.C. § 1326.       Villeda

contends that his sentence should be vacated and remanded because

the district court sentenced him under the mandatory guidelines

scheme 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this opinion should not be published and is not precedent except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. 05-40132
                                -2-

     As the district court sentenced Villeda under a mandatory

guidelines regime, it committed Fanfan error.    See United States

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

denied, 126 S. Ct. 267 (2005).    When a defendant has preserved a

Fanfan challenge in the district court, this court reviews for

harmless error.   United States v. Walters, 418 F.3d 461, 463 (5th

Cir. 2005); Valenzuela-Quevedo, 407 F.3d at 732-33. Villeda’s

Fanfan challenge was preserved by his objection in the district

court under Blakely v. Washington, 542 U.S. 296 (2004).    See

United States v. Reyes-Celestino, 443 F.3d 451, 453 (5th Cir.

2006).

     We conclude that the Government has not met its burden of

showing beyond a reasonable doubt that the district court would

have imposed the same sentence absent the error.     See id.; United

States v. Garza, 429 F.3d 165, 170-71 (5th Cir. 2005), cert.

denied, 126 S. Ct. 1444 (2006).   We therefore vacate Villeda’s

sentence and remand for resentencing.

     Villeda also challenges the constitutionality of § 1326(b)

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

Villeda’s constitutional challenge is foreclosed by Almendarez-

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

Villeda 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
                           No. 05-40132
                                -3-

remains binding.   See United States v. Garza-Lopez, 410 F.3d 268,

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).   Villeda

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.   Therefore, Villeda’s conviction

is affirmed.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.
