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. 04-41374 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NICOLAS NUNEZ-MUNOZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-547-ALL --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Nicolas Nunez-Munoz (Nunez) appeals his conviction and

sentence for illegal reentry after a previous deportation. Nunez

argues that the district 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 Nunez’s sentence was for his

prior conviction. See Booker,

.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41374 -2-

Nevertheless, the district court committed “Fanfan” error by

sentencing Nunez pursuant to a mandatory guidelines scheme. See

United States v. Walters,

(5th Cir. 2005).

We have previously rejected Nunez’s claim that such error is

“‘structural’ in nature.” See

.

The Government concedes that Nunez preserved his Fanfan

argument. As such, this court reviews the claim for harmless

error. See

. 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.

Nunez next argues 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). Nunez’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States,

(1998). Although Nunez 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). Nunez properly concedes that his

argument is foreclosed in light of Almendarez-Torres and circuit No. 04-41374 -3-

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

review. Accordingly, Nunez’s conviction is affirmed.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.