United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 27, 2006

Charles R. Fulbruge III No. 04-41277 Clerk Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN GONZALEZ-MENDOZA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-121-ALL --------------------

Before KING, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

Juan Gonzalez-Mendoza (Gonzalez) appeals following his

conviction and sentence for illegal reentry of the United States

following deportation. Gonzalez contends 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 Gonzalez’s sentence was for his prior conviction. See Booker,

. Nevertheless, the district court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41277 -2-

committed “Fanfan” error by sentencing Gonzalez pursuant to a

mandatory application of the Sentencing Guidelines. See United

States v. Walters,

(5th Cir. 2005). We have

previously rejected Gonzalez’s claim that such error is

“structural” in nature. See

.

The Government concedes that Gonzalez preserved his Fanfan

argument. Accordingly, this court reviews the claim for harmless

error. See

.

The Government argues that the district court’s error in

sentencing under a mandatory application of the Sentencing

Guidelines was harmless because the district court determined

Gonzalez’s sentence by considering the Sentencing Guidelines and

the factors set forth in

(a). Because the

Government has failed to carry its burden of showing beyond a

reasonable doubt that the error did not affect Gonzalez’s

sentence, we will vacate the sentence and remand for

resentencing. See

Gonzalez contends that the district court erred in

determining that his California marijuana conviction was a “drug

trafficking offense” under U.S.S.G § 2L1.2(b)(1)(B). He argues

that this court would violate Fed. R. Crim. P. 32(i)(3)(B) if it

resolved this claim by relying on a transcript of his California

guilty plea hearing, which was supplemented into the record over

his objection. Because we vacate Gonzalez’s sentence due to the

mandatory application of the Sentencing Guidelines, it is not No. 04-41277 -3-

necessary to address these arguments. See United States v.

Akpan,

, 377 n.62 (5th Cir. 2005).

Gonzalez argues that the provisions of

(b)

are unconstitutional in light of Apprendi v. New Jersey,

(2000). Gonzalez’s constitutional challenge to § 1326(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, 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 circuit

precedent, but he raises it to preserve it for further review.

SENTENCE VACATED; CONVICTION AFFIRMED; REMANDED FOR

RESENTENCING.