United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 22, 2006

Charles R. Fulbruge III Clerk No. 04-41276 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE MARTINEZ-GARCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-678-ALL --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jose Martinez-Garcia (Martinez) appeals the sentence imposed

following his guilty-plea conviction of illegal reentry after

deportation, in violation of

. The district court

sentenced Martinez to 41 months in prison, based on a prior

conviction for an alien smuggling offense.

Martinez contends that his sentence is illegal under United

States v. Booker,

(2005), because it was imposed

pursuant to a mandatory application of the federal sentencing

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41276 -2-

guidelines. Martinez thus alleges a “Fanfan” error. See United

States v. Walters,

(5th Cir. 2005). In the

district court, Martinez 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

Martinez’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,

.

Martinez also contends that the “felony” and “aggravated

felony” provisions of

(b) are unconstitutional.

Martinez’s constitutional challenge to § 1326(b) is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Martinez 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). Martinez properly concedes that his argument

is foreclosed in light of Almendarez-Torres and circuit No. 04-41276 -3-

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

review. Accordingly, the conviction is affirmed.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.