                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                 UNITED STATES COURT OF APPEALS
                          FIFTH CIRCUIT                     March 17, 2006

                                                        Charles R. Fulbruge III
                                                                Clerk
                          No. 04-41282
                        Summary Calendar


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                             versus

                    JAVIER VILLELA-ESPINOSA,

                                                Defendant-Appellant.



          Appeal from the United States District Court
                for the Southern District of Texas
                         (5:04-CR-693-ALL)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Javier Villela-Espinosa appeals his conviction and sentence

for illegal reentry following deportation.       Villela claims the

district court committed reversible error under United States v.

Booker, 543 U.S. 220 (2005), by sentencing him pursuant to a

mandatory application of the Sentencing Guidelines (Fanfan error).

The Government concedes that Villela has preserved this issue 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this opinion should not be published and is not precedent except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.
appeal.    Such error is not structural.              United States v. Martinez-

Lugo, 411 F.3d 597, 601 (5th Cir. 2005).

      On the other hand, the Government has not shown beyond a

reasonable doubt that the error was harmless. See United States v.

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

Villela’s sentence is vacated, and this case is remanded for

resentencing.

      Villela also asserts the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional

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

Villela’s      constitutional          challenge          is    foreclosed        by

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

Although Villela contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule it

in   the   light   of    Apprendi,    we       have   repeatedly    rejected    such

assertions 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).    Villela    concedes    his

assertion is foreclosed in the light of Almendarez-Torres and

circuit precedent; he raises it to preserve it for further review.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING




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