                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 7, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-51153
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JORGE CERVANTES-BLANCO,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 3:04-CR-472-ALL
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jorge Cervantes-Blanco appeals his guilty-plea conviction

and sentence for illegal reentry following deportation in

violation of 8 U.S.C. § 1326.   He 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).




     *
       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this opinion should not be published and is not precedent except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. 04-51153
                                -2-

     Cervantes-Blanco’s constitutional challenge is foreclosed by

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

Although Cervantes-Blanco 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).   Cervantes-Blanco 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.

     Cervantes-Blanco also 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).   Further, Cervantes-Blanco argues that the

district court erred when it enhanced his sentence based on a

finding that his state conviction for attempted second degree

kidnaping was a crime of violence.

     The district court erred when it sentenced Cervantes-Blanco

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.
                               No. 04-51153
                                    -3-

denied, 126 S. Ct. 464 (2005).        Because Cervantes-Blanco

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.        United States v. Walters, 418 F.3d

461, 463 (5th Cir. 2005).       The Government bears the burden of

proving beyond a reasonable doubt that the district court would

not have sentenced Cervantes-Blanco differently under an advisory

guidelines system.     See id. at 464.1

     The Government concedes that the district court erred when

it sentenced Cervantes-Blanco pursuant to a mandatory guidelines

system and that the error was not harmless.          A review of the

sentencing transcript supports the Government’s concession.              We

therefore vacate Cervantes-Blanco’s sentence and remand the case

for resentencing.     Because we remand based on the Fanfan error,

we need not address Cervantes-Blanco’s other claimed sentencing

error.   See United States v. Akpan, 407 F.3d 360, 377 n.62 (5th

Cir. 2005).

     CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.




     1
         Although we must follow the panel’s decision in Walters, United
States v. Ruiz, 180 F.3d 675, 676 (5th Cir. 1999), we note that the standard
of review it applied - requiring the Government to show that preserved Fanfan
error was harmless beyond a reasonable doubt - was not contested in the case
and appears to be incorrect because Fanfan error is nonconstitutional error,
see United States v. Hughes, 410 F.3d 540, 553 (4th Cir. 2005) (pointing out
that Fanfan error, unlike Booker error, is nonconstitutional). Rather,
“harmless error” in Fanfan cases is defined by the standard announced in
Kotteakos v. United States, 328 U.S. 750, 776 (1946). See United States v.
Hernandez-Guevara, 162 F.3d 863, 876 (5th Cir. 1998) (applying Kotteakos to
preserved nonconstitutional error). But the issue is irrelevant here because
the Government cannot meet either burden.
