                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                     March 17, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41089
                         Summary Calendar


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              versus

 LUIS PIMENTEL-HILLAN, also known as Luis Pimental-Hillan, also
                known as Luis Pimental-Valencia,

                                                Defendant-Appellant.


          Appeal from the United States District Court
               for the Southern District of Texas
                         (5:04-CR-166-1)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Luis Pimentel-Hillan appeals his guilty-plea conviction and

sentence for illegal reentry, in violation of 8 U.S.C. § 1326.

Pimentel asserts his sentence is illegal under United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because it was imposed

pursuant to a mandatory application of the federal Sentencing

Guidelines.




     *
       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this opinion should not be published and is not precedent except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.
     The erroneous application of the Guidelines as mandatory is

technically a Fanfan error.            United States v. Martinez-Lugo, 411

F.3d 597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464 (2005);

see Booker,      125   S.   Ct.   at   750,      768-69.     Such     error   is    not

structural.      Martinez-Lugo, 411 F.3d at 601.

     The Government concedes Pimentel preserved his Fanfan claim

for appeal.   The Government fails to meet its burden of proving the

sentence was harmless beyond a reasonable doubt because it fails to

cite to any record evidence showing the district court would have

imposed the same sentence under an advisory guidelines scheme. See

United States v. Garza, 429 F.3d 165, 171 (5th Cir. 2005), petition

for cert. filed,(No. 05-8843) (23 Jan. 2006); United States v.

Walters, 418 F.3d 461, 464 (5th Cir. 2005). We therefore vacate

Pimentel’s    sentence      and   remand     the    case    for    resentencing     in

accordance with Booker.

     Pimentel      also     maintains      the     enhancement       provisions      in

§ 1326(b) are unconstitutional. As he concedes, this contention is

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

(1998), which this court must follow “unless and until the Supreme

Court   itself    determines      to   overrule      it”.         United   States    v.

Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.) (quotation marks

omitted), cert. denied, 126 S. Ct. 253 (2005).                He raises the issue

to preserve it for further review.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING

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