United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006

Charles R. Fulbruge III Clerk No. 04-41141 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE NATIVIDAD GONZALEZ-PARDO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-377-ALL --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Jose Natividad Gonzalez-Pardo appeals the sentence imposed

following his guilty-plea conviction of illegal reentry after

deportation, in violation of

. The district court

sentenced Gonzalez to 15 months of imprisonment, based in part on

a prior illegal reentry conviction.

Gonzalez contends that his sentence is illegal under United

States v. Booker,

,

(2005), because it

was imposed pursuant to a mandatory application of the 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41141 -2-

States Sentencing Guidelines. Gonzalez thus alleges a “Fanfan”

error. See United States v. Walters,

(5th Cir.

2005). In the district court, Gonzalez objected to his sentence

under Blakely v. Washington,

(2004), and the

Government concedes that the issue is preserved and that it is

subject to review for harmless error.

The Government has not carried its burden of showing beyond

a reasonable doubt that the district court’s error did not affect

Gonzalez’s sentence. See Walters,

; United States

v. Pineiro,

(5th Cir. 2005). We therefore

vacate the sentence and remand for resentencing in accordance

with Booker. See Walters,

; Pineiro,

.

Gonzalez also contends that the “felony” and “aggravated

felony” provisions of

(b) are unconstitutional.

Gonzalez’s constitutional challenge to

(b) is

foreclosed by Almendarez-Torres v. United States,

(1998). Although Gonzalez 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). Gonzalez properly concedes

that his argument is foreclosed in light of Almendarez-Torres and No. 04-41141 -3-

circuit precedent, but he raises it here to preserve it for

further review. Accordingly, the judgment of conviction is

affirmed.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.