                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 21, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                           No. 05-40022
                         Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus


MAGDALENO REYES-BAUTISTA,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                   USDC No. 5:04-CR-1494-ALL
                      --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Magdaleno Reyes-Bautista appeals his guilty-plea conviction

and sentence for being found in the United States, without

permission, following deportation.    See 8 U.S.C. § 1326(a), (b).

Reyes-Bautista argues that the sentencing provisions in 8 U.S.C.

§ 1326(b) are unconstitutional.   Reyes-Bautista’s constitutional

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

523 U.S. 224, 235 (1998).   Although Reyes-Bautista contends that

Almendarez-Torres was incorrectly decided and that a majority of

     *
       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this opinion should not be published and is not precedent except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. 05-40022
                                  -2-

the Supreme Court would overrule Almendarez-Torres in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000), 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).    Reyes-

Bautista 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.

     Reyes-Bautista next argues that the district court erred by

characterizing, for purposes of U.S.S.G. § 2L1.2(b)(1)(C), his

state felony conviction for possession of a controlled substance

as an “aggravated felony.”    Reyes-Bautista’s argument is

foreclosed.   See United States v. Hinojosa-Lopez, 130 F.3d 691,

694 (5th Cir. 1997).   The Supreme Court’s decision in Jerome v.

United States, 318 U.S. 101 (1943), does not affect this

precedent.

     Finally, Reyes-Bautista argues that the district court

committed reversible error when it sentenced him pursuant to the

mandatory United States Sentencing Guidelines scheme held

unconstitutional in United States v. Booker, 543 U.S. 220 (2005).

By sentencing Reyes-Bautista under a mandatory guidelines regime,

the district court committed what this court refers to as Fanfan

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

2005).   The Government concedes that Reyes-Bautista preserved his

Fanfan claim for appellate review.    The Government has not
                             No. 05-40022
                                  -3-

sustained its burden of demonstrating that the district court’s

Fanfan error was harmless.    See id. at 463-64.   We therefore we

VACATE Reyes-Bautista’s sentence and REMAND the case for

resentencing.

     CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
