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. 04-41293 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS ALFONSO ANARIBA-RAMIREZ, also known as Luis Alonzo Anariba-Ramirez, also known as Oscar Rolando Zavala-Guzman,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:03-CR-1685-ALL --------------------

Before KING, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

Luis Alfonso Anariba-Ramirez appeals from his guilty-plea

conviction and sentence for being found in the United States

after having been previously removed. He was sentenced to 50

months of imprisonment and three years of supervised release.

Anariba-Ramirez asserts that his sentence is invalid in light of

United States v. Booker,

(2005). Because the

district court sentenced Anariba-Ramirez under a mandatory

guidelines regime, it committed a Fanfan error. See United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41293 -2-

States v. Walters,

(5th Cir. 2005). Because

the Government concedes that Anariba-Ramirez preserved his Fanfan

claim, this court reviews for harmless error. Id.; United States

v. Mares,

(5th Cir.), cert. denied,

(2005). Under this standard of review, the Government bears

the burden of proving beyond a reasonable doubt that the district

court would not have sentenced Anariba-Ramirez differently under

an advisory guidelines sentencing regime. Walters,

. The record contains no indication that the district court

would have imposed the same sentence absent the error. The

Government thus cannot meet its burden. Accordingly, Anariba-

Ramirez’s sentence is vacated and the case is remanded for

resentencing.

Anariba-Ramirez’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Anariba-Ramirez 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). Anariba-Ramirez 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. 04-41293 -3-

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.