                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 18, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41701
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN CARLOS DIAZ-MARQUEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-1164-ALL
                       --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     Juan Carlos Diaz-Marquez (Diaz) appeals his 58-month

sentence for having entered the United States illegally after

deportation, in violation of 8 U.S.C. § 1326(a) and (b).       Diaz

contends that his sentence must be vacated and his case remanded

for resentencing because the district court committed reversible

error by sentencing him pursuant to a mandatory Sentencing

Guidelines regime, in light of United States v. Booker, 543 U.S.

220 (2005).


     *
       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this opinion should not be published and is not precedent except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. 04-41701
                                - 2 -

     The district court’s sentence pursuant to a mandatory

guideline scheme constitutes Fanfan error.     See United States v.

Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).    The Government

thus bears the burden of proving beyond a reasonable doubt that

the district court would have imposed the same sentence had

the Guidelines been advisory only.   See id. at 464-65.     If the

Government cannot show that the error was harmless, we ordinarily

will vacate and remand for resentencing.     Id. at 463.

     The sentencing transcript does not reveal whether the

district court would have imposed the same sentence had the

Guidelines been advisory.   Because the Government cannot meet

its burden, we vacate Diaz’s sentence and remand the case for

resentencing.   See id. at 464-66.

     Diaz also challenges the constitutionality of § 1326(b)’s

treatment of prior felony and aggravated-felony convictions as

sentencing factors rather than as elements of the offense that

must be found by a jury, on authority of Apprendi v. New Jersey,

530 U.S. 466 (2000).   Diaz’s constitutional challenge is

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

235 (1998).   Although Diaz contends that Almendarez-Torres was

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.),
                           No. 04-41701
                               - 3 -

cert. denied, 126 S. Ct. 298 (2005).   Diaz properly 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, Diaz’s conviction is affirmed.

     CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
