United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 9, 2006

Charles R. Fulbruge III Clerk No. 04-41497 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE HERNANDEZ-MARTINEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1062-ALL --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Jorge Hernandez-Martinez (Hernandez) pleaded guilty to

illegal reentry after deportation and was sentenced to 77 months

of imprisonment, three years of supervised release, and a $100

special assessment.

Hernandez argues that the district court committed

reversible error when it sentenced him pursuant to the mandatory

Federal Sentencing Guidelines system held unconstitutional in

United States v. Booker,

(2005). The erroneous

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41497 -2-

application of the guidelines as mandatory is technically a

“Fanfan error.” See United States v. Martinez-Lugo,

(5th Cir.), cert. denied,

(2005). The

Government implicitly concedes that Hernandez preserved his

Fanfan claim for appeal and that the issue is reviewed for

harmless error. See United States v. Walters,

(5th Cir. 2005).

Hernandez argues that he is entitled to resentencing because

application of the Sentencing Guidelines as mandatory constituted

structural error. However, this issue is foreclosed. See

Hernandez also contends that the record does not disclose that

the district court’s error was harmless. The Government argues

that any error by the district court was harmless because the

district court acted reasonably in taking into account the

Sentencing Guidelines, the

(a) sentencing

factors, and the presentence report when it sentenced Hernandez,

and it notes that the district court did not express “dismay or

frustration” in sentencing Hernandez within the guideline range.

The sentencing transcript is silent with regard to whether the

district court would have applied the same sentence had the

Guidelines been advisory only. Furthermore, Hernandez’s 77-month

term of imprisonment is at the bottom of the applicable guideline

range. Under such circumstances, the Government has not met its

burden of proving the error harmless beyond a reasonable doubt. No. 04-41497 -3-

See

We therefore VACATE the sentence and REMAND for

resentencing in accordance with Booker.

Hernandez’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Hernandez 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). Hernandez 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. The judgment of conviction is AFFIRMED.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.