                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 25, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-40058
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

LAURO HERNANDEZ-LOPEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-589-ALL
                      --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Lauro Hernandez-Lopez appeals his guilty-plea conviction and

sentence for illegal reentry following deportation in violation

of 8 U.S.C. § 1326.   He 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 (2005).



     The district court erred when it sentenced Hernandez-Lopez

pursuant to a mandatory guidelines system.   See United States v.

     *
       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this opinion should not be published and is not precedent except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. 06-40058
                                  -2-

Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert. denied,

126 S. Ct. 267 (2005).    Because Hernandez-Lopez 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.    See United States v. Rodriguez-Mesa, 443

F.3d 397, 404 (5th Cir. 2006).    The Government bears the burden

of proving beyond a reasonable doubt that the district court

would not have sentenced Hernandez-Lopez differently under an

advisory guidelines system.     See United States v. Walters,

418 F.3d 461, 464 (5th Cir. 2005).

     The sentencing transcript is silent with regard to whether

the district court would have imposed the same sentence had the

Guidelines been advisory rather than mandatory.    Further, the

district court’s grant of a downward departure alone is

insufficient to satisfy the Government’s burden of showing beyond

a reasonable doubt that the error did not affect Hernandez-

Lopez’s sentence.     See United States v. Garza, 429 F.3d 165, 171

(5th Cir. 2005), cert. denied, 126 S. Ct. 1444 (2006).     We

therefore vacate Hernandez-Lopez’s sentence and remand the case

for resentencing.

     Hernandez-Lopez also challenges the constitutionality of

§ 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).
                           No. 06-40058
                                -3-

     Herndandez-Lopez’s constitutional challenge is foreclosed by

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

Although Hernandez-Lopez 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).   Hernandez-Lopez 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.

     CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
