                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 15, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40253
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ARTURO RODRIGUEZ-ALVARRAN,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-1821-ALL
                       --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Arturo Rodriguez-Alvarran appeals his sentence for illegal

reentry into the United States following deportation in violation

of 8 U.S.C. § 1326.   He argues that the district court committed

reversible error by sentencing him pursuant to a mandatory

sentencing guidelines scheme in light of United States v. Booker,

125 S. Ct. 738 (2005).

     The district court committed “Fanfan” error by sentencing

Rodriguez-Alvarran pursuant to a mandatory guidelines scheme.


     *
       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this opinion should not be published and is not precedent except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. 05-40253
                                  -2-

See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.

2005).   Although Rodriguez-Alvarran contends that such error is

structural, this argument is foreclosed by circuit precedent.

See id. at 463.

     The Government concedes that Rodriguez-Alvarran preserved

his Fanfan claim.    As such, this court reviews the claim for

harmless error.     See id. at 464.   There is no indication in the

record that the district court would have imposed the same

sentence had the guidelines been advisory rather than mandatory.

Accordingly, we VACATE the sentence and REMAND for resentencing

in accordance with Booker.

     Rodriguez-Alvarran also argues that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and

(b)(2) are unconstitutional on their face and as applied in his

case in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

Rodirguez-Alvarran’s constitutional challenge is foreclosed by

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

Although Rodriguez-Alvarran 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).

Rodriguez-Alvarran properly concedes that his argument is

foreclosed in light of Almendarez-Torres and circuit precedent,
                          No. 05-40253
                               -3-

but he raises it here to preserve it for further review.

Accordingly, Rodriguez-Alvarran’s conviction is AFFIRMED.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.
