                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    January 30, 2006

                                                             Charles R. Fulbruge III
                                                                     Clerk
                             No. 05-40091
                           Summary Calendar



UNITED STATES OF AMERICA,

                                       Plaintiff-Appellee,

versus

ALEJANDRO FELIX RODRIGUEZ-PECINA,

                                       Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                       (5:04-CR-1492-ALL)
                      --------------------

Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant      Alejandro     Felix    Rodriguez-Pecina

(“Rodriguez-Pecina”)   appeals   his   conviction   and   sentence      for

illegal reentry after a previous deportation.        Rodriguez-Pecina

argues that the district court reversibly erred under United States

v. Booker, 125 S. Ct. 738 (2005), by sentencing him pursuant to a

mandatory application of the sentencing guidelines.

     There was no “Booker” error or Sixth Amendment violation

because the only enhancement to Rodriguez-Pecina’s sentence was for


     *
       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this opinion should not be published and is not precedent except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.
his prior conviction.        See Booker, 125 S. Ct. at 756, 769.

Nevertheless,    the   district   court   committed   “Fanfan”    error    by

sentencing Rodriguez-Pecina pursuant to a mandatory guidelines

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

Cir. 2005).     A Fanfan error is not structural error.          See United

States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.), cert.

denied, 126 S. Ct. 464 (2005).            The government concedes that

Rodriguez-Pecina preserved his Fanfan claim, so we review the claim

for harmless error.      See Walters, 418 F.3d 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-Pecina     also    contends    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).            Rodriguez-

Pecina’s constitutional challenge is foreclosed by Almendarez-

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

Rodriguez-Pecina 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-Pecina properly

                                    2
concedes that his argument is foreclosed in light of Almendarez-

Torres and circuit precedent, but he raises it here to preserve it

for further review.   Accordingly, Rodriguez-Pecina’s conviction is

AFFIRMED.

CONVICTION   AFFIRMED;   SENTENCE       VACATED;   CASE   REMANDED   FOR

RESENTENCING.




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