                                                       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. 04-41592
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALLAN ROBERTO RIVERA-GARCIA,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                        (5:04-CR-1081-ALL)
                       --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Allan Roberto Rivera-Garcia appeals his

guilty-plea conviction and sentence for being found in the United

States, without permission, following removal.         See 8 U.S.C.

§   1326(a),(b).    Rivera-Garcia   asserts   that   the    sentencing

provisions in 8 U.S.C. § 1326(b) are unconstitutional on their face

and as applied in his case.     This constitutional challenge is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998). Although Rivera-Garcia contends that Almendarez-Torres was


     *
       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this opinion should not be published and is not precedent except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.
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).   Rivera-Garcia candidly concedes that his argument is

foreclosed in light of Almendarez-Torres and circuit precedent,

raising it here solely to preserve it for further review.                   We

affirm Rivera-Garcia’s conviction.

     Rivera-Garcia also insists that the district court committed

reversible error when it sentenced him pursuant to the mandatory

scheme United States Sentencing Guidelines (U.S.S.G.) that was

ultimately held unconstitutional in United States v. Booker, 543

U.S. 220 (2005).       In sentencing Rivera-Garcia under a mandatory

guidelines regime, the district court committed error that we refer

to as Fanfan error.      See United States v. Walters, 418 F.3d 461,

463 (5th Cir. 2005).      The government concedes that Rivera-Garcia

preserved his Fanfan claim for appellate review.               To prevail, the

government must prove that the Fanfan error in this case was

harmless beyond    a    reasonable   doubt.       The   government    has   not

sustained this burden.      See id. at 463-64.        We are constrained to

vacate   Rivera-Garcia’s     sentence       and   remand       the   case   for

resentencing.

CONVICTION    AFFIRMED;     SENTENCE       VACATED;     CASE    REMANDED    FOR

RESENTENCING.

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