United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 13, 2006

Charles R. Fulbruge III Clerk No. 04-11220 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ALEXIS ADRIAN GUZMAN-GONZALEZ

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:04-CR-204-ALL-H --------------------

Before KING, DeMOSS and PRADO, Circuit Judges.

PER CURIAM:*

Alexis Adrian Guzman-Gonzalez appeals his conviction of one

charge of illegal reentry into the United States and the

resulting sentence of 54 months in prison and a two-year term of

supervised release. He first challenges the constitutionality of

(b). Guzman-Gonzalez’s constitutional challenge

is foreclosed by Almendarez-Torres v. United States,

(1998). Although Guzman-Gonzalez contends that

Almendarez-Torres was incorrectly decided and that a majority of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-11220 -2-

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). Guzman-

Gonzalez 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.

Guzman-Gonzalez also argues that his sentence should be

vacated and remanded because the district court sentenced him

under the mandatory Guidelines scheme held unconstitutional in

United States v. Booker,

(2005). Because the

district court sentenced Guzman-Gonzalez under a mandatory

Guidelines regime, it committed Fanfan error. See United States

v. Walters,

(5th Cir. 2005). When a Fanfan

error “is preserved in the district court by an objection, we

will ordinarily vacate the sentence and remand, unless we can say

the error is harmless.” United States v. Mares,

,

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

(2005).

The Government concedes that Guzman-Gonzalez’s objection,

which was grounded in Blakely v. Washington,

(2004),

was sufficient to preserve his Fanfan claim and that the harmless

error standard of review applies. We conclude that the

Government has not met its burden of showing beyond a reasonable

doubt that the district court would have imposed the same No. 04-11220 -3-

sentence absent the error. See United States v. Garza,

(5th Cir. 2005). We therefore vacate Guzman-

Gonzalez’s sentence and remand for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.