United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 2, 2006

Charles R. Fulbruge III Clerk No. 04-41376 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS ONTIVEROS-MAYORGA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-729-ALL --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Luis Ontiveros-Mayorga (“Ontiveros”) appeals from his

guilty-plea conviction for reentry of a deported alien, in

violation of

. Ontiveros 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). He also argues that the district court erroneously

determined that a prior state conviction was for a crime of

violence.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41376 -2-

Because the district court sentenced Ontiveros under a

mandatory Guidelines regime, it committed Fanfan error. See

United States v. Valenzuela-Quevado,

(5th

Cir.), cert. denied,

(2005); see also United

States v. Walters,

(5th Cir. 2005)(discussing

the difference between Sixth Amendment Booker error and Fanfan

error). “[I]f either the Sixth Amendment issue presented in

Booker or the issue presented in Fanfan 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

under Rule 52(a) of the Federal Rules of Criminal Procedure.”

United States v. Pineiro,

(5th Cir. 2005)

(internal quotation marks and citation omitted). The Government

concedes that Ontiveros’s objection on the basis of Blakely was

sufficient to preserve his Fanfan claim.

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 sentence absent the error. See Pineiro,

; United States v. Garza,

(5th

Cir. 2005). We therefore VACATE Ontiveros’s sentence and REMAND

for re-sentencing. Because the Fanfan error requires remand for

re-sentencing, we need not address Ontiveros’s other claimed

sentencing error. See United States v. Akpan,

, 377

n.62 (5th Cir. 2005). No. 04-41376 -3-

Ontiveros also challenges the constitutionality of

(b). His constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Ontiveros 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). Ontiveros 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. Accordingly, Ontiveros’s conviction is AFFIRMED.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.