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. 04-20968 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SANTIAGO GONZALEZ, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:01-CR-877-4 --------------------

Before KING, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

Santiago Gonzalez, Jr., appeals his convictions and

sentences for conspiracy and aiding and abetting to possess with

the intent to distribute five kilograms or more of cocaine.

Gonzalez argues that the district court reversibly erred under

United States v. Booker,

,

(2005), by

sentencing him pursuant to a mandatory application of the

Sentencing Guidelines.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-20968 -2-

There was no “Booker” error or Sixth Amendment violation

because the only enhancement to Gonzalez’s sentences was for his

prior convictions. See Booker,

.

Nevertheless, the district court committed “Fanfan” error by

sentencing Gonzalez pursuant to a mandatory guidelines scheme.

See United States v. Walters,

(5th Cir.

2005). We have previously rejected Gonzalez’s claim that such

error is “structural” in nature. See

.

The Government concedes that Gonzalez preserved his Fanfan

claim. As such, this court reviews the claim for harmless error.

See

. 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 sentences and remand for resentencing.

Gonzalez next argues that the career offender enhancement

violated his constitutional rights because the predicate

convictions were neither charged in the indictment nor found by a

jury beyond a reasonable doubt. The argument is without merit.

See United States v. Guevara,

(5th Cir. 2005),

cert. denied, ___ S. Ct. ___ (Jan. 9, 2006)(No. 05-7643).

Gonzalez properly acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States,

(1998), but

seeks to preserve the issue for further review. Gonzalez’s

convictions are affirmed.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.