United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT January 11, 2006

Charles R. Fulbruge III Clerk No. 04-41571 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CARLOS VILLAFUERTE-NAVARRO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-702-1 --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Carlos Villafuerte-Navarro (Villafuerte) pleaded guilty to

unlawfully re-entering the United States in violation of

(a). He challenges the district court’s imposition of a

16-level enhancement for a prior felony conviction pursuant to

U.S.S.G. § 2L1.2, arguing that the enhancement violates the rule

announced in United States v. Booker,

(2005).

As the enhancement was based on a prior conviction, there is

no Sixth Amendment Booker error. Rather, the error was the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41571 -2-

application of the Sentencing Guidelines as mandatory, which we

have termed “Fanfan” error. See United States v. Walters,

(5th Cir. 2005). As with Booker error, when “Fanfan”

error is preserved in the district court, this court “will

ordinarily vacate the sentence and remand, unless [the court] can

say the error was harmless.” United States v. Mares,

,

520 n.9 (5th Cir.), cert. denied,

(2005). As

Villafuerte objected to the application of the Guidelines to him,

we review for harmless error. See Walters,

. We

reject Villafuerte’s contention that “Fanfan” error is structural

and, therefore, insusceptible of harmless error analysis. See

Walters,

.

To show harmless error, the Government must demonstrate

“beyond a reasonable doubt that the district court would not have

sentenced [the defendant] differently had it acted under an

advisory Guidelines regime.” United States v. Akpan,

(5th Cir. 2005). In light of Walters, we reject the

Government’s contention that the “harmless beyond a reasonable

doubt” standard is inapplicable.

The Government has not met its burden. The record contains no

indication as to what the district court would have done had it

been aware that it was not bound to apply the Sentencing

Guidelines. The Government’s contention that the district court’s

sentence at the low end of the Guidelines reflected that the court

considered the Guidelines and the factors set forth in 18 U.S.C. No. 04-41571 -3-

§ 3553(a) and took into account Villafuerte’s objection that his

criminal history was over-represented is unavailing. Those facts

tell us nothing more than that, within the then-mandatory

Guidelines framework, the district court believed that the sentence

was appropriate. They shed no light on what sentence the district

court would have imposed had it been given the greater discretion

afforded by an advisory Guidelines scheme. As we cannot say that

the mandatory application of the Guidelines did not affect

Villafuerte’s sentence, Villafuerte’s sentence must be vacated and

the case must be remanded for re-sentencing.

Villafuerte also asserts that the enhanced penalty provisions

of

(b) are unconstitutional. Villafuerte’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States,

(1998). Although Villafuerte

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,

(2000), we have

repeatedly rejected such arguments on the basis that Almendarez-

Torres remains binding. See United States v. Garza-Lopez,

(5th Cir.), cert. denied,

(2005).

Villafuerte 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. No. 04-41571 -4-

For the foregoing reasons, we AFFIRM Villafuerte’s conviction.

We VACATE his sentence and REMAND to the district court for re-

sentencing.

AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR RE-

SENTENCING.