United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT January 30, 2006

Charles R. Fulbruge III Clerk No. 05-40091 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEJANDRO FELIX RODRIGUEZ-PECINA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (5:04-CR-1492-ALL) --------------------

Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Alejandro Felix Rodriguez-Pecina

(“Rodriguez-Pecina”) appeals his conviction and sentence for

illegal reentry after a previous deportation. Rodriguez-Pecina

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.

There was no “Booker” error or Sixth Amendment violation

because the only enhancement to Rodriguez-Pecina’s sentence was for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. his prior conviction. See Booker,

.

Nevertheless, the district court committed “Fanfan” error by

sentencing Rodriguez-Pecina pursuant to a mandatory guidelines

system. See United States v. Walters,

(5th

Cir. 2005). A Fanfan error is not structural error. See United

States v. Martinez-Lugo,

(5th Cir.), cert.

denied,

(2005). The government concedes that

Rodriguez-Pecina preserved his Fanfan claim, so we review the claim

for harmless error. See Walters,

. 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 sentence and remand for

resentencing in accordance with Booker.

Rodriguez-Pecina also contends that the “felony” and

“aggravated felony” provisions of

(b)(1) and (b)(2)

are unconstitutional on their face and as applied in his case in

light of Apprendi v. New Jersey,

(2000). Rodriguez-

Pecina’s constitutional challenge is foreclosed by Almendarez-

Torres v. United States,

(1998). Although

Rodriguez-Pecina contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi, 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). Rodriguez-Pecina properly

2 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, Rodriguez-Pecina’s conviction is

AFFIRMED.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR

RESENTENCING.

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