                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 20, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-40179
                          Summary Calendar



                     UNITED STATES OF AMERICA,

                        Plaintiff-Appellee,

                               versus

                     JOSE CRUZ CORTEZ-MELENDEZ,
                        Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 5:04-CR-1631-ALL
                         --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose Cruz Cortez-Melendez appeals his conviction and

sentence following his plea of guilty to one count of unlawful

re-entry.   Melendez first contends that the district court’s 16-

level enhancement of his offense level based on his prior drug

trafficking conviction violated his constitutional rights in

light of United States v. Booker, 125 S. Ct. 738 (2005).       As the

enhancement was based on a prior conviction, there is no Sixth

Amendment error; rather, any error was in the application of the

Sentencing Guidelines as mandatory, which we have termed “Fanfan”

     *
       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this opinion should not be published and is not precedent except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. 05-40179
                                -2-

error.   See United States v. Walters, 418 F.3d 464, 463 (5th Cir.

2005) (discussing the distinction between the two types of error

addressed in Booker).   When “Fanfan” error is preserved in the

district court, this court “will ordinarily vacate the sentence

and remand, unless we can say the error was harmless.”     United

States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir.), cert. denied,

126 S. Ct. 43 (2005).   As there is no indication in the record

that the district court would have imposed the same sentence

under an advisory rather than mandatory Guidelines scheme, the

Government cannot carry its burden of demonstrating harmless

error, a point that the Government effectively concedes.     See

United States v. Akpan, 407 F.3d 360, 376-77 (5th Cir. 2005),

     Cortez next argues that the felony and aggravated felony

provisions of 8 U.S.C. § 1326(b) are unconstitutional because

they treat prior convictions as sentencing factors rather than

offense elements.   Cortez’s constitutional challenge is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998).   Although Cortez contends that Almendarez-Torres was

incorrectly decided and that a majority of 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).   Cortez properly concedes

that his argument is foreclosed in light of Almendarez-Torres and
                          No. 05-40179
                               -3-

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

further review.

     For the foregoing reasons, we AFFIRM Cortez’s conviction,

but we VACATE his sentence and REMAND for re-sentencing.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.
