United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 7, 2006

Charles R. Fulbruge III Clerk No. 04-41513 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NORBERTO GALVAN-MARIQUES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-960-ALL --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Norberto Galvan-Mariques (Galvan) appeals his guilty-plea

conviction and 27-month prison sentence for illegally re-entering

the United States after deportation, in violation of

.

Galvan argues that, under United States v. Booker,

(2005), the district court erred when it sentenced him

pursuant to the pre-Booker mandatory sentencing guidelines

regime. He is correct. See United States v. Valenzuela-Quevedo,

(5th Cir.), cert. denied,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41513 -2-

(2005). By stating that a harmless-error standard of review

applies to this “Fanfan” challenge, the Government concedes that

Galvan preserved the challenge for appellate review. We review a

preserved challenge to the mandatory application of the

Sentencing Guidelines for harmless error, and the Government

bears the burden of showing harmlessness. United States v.

Walters,

(5th Cir. 2005). Before an error

can be held harmless, the Government must “point to . . . record

evidence that would prove beyond a reasonable doubt that the

district court would not have sentenced [the defendant] different

had it acted under an advisory Guidelines regime.” United States

v. Akpan,

(5th Cir. 2005). Because the

Government has not met this burden, we vacate Galvan’s sentence

and remand for resentencing.

Galvan’s constitutional challenge to the “felony” and

“aggravated felony” provisions of

(b) is

foreclosed by Almendarez-Torres v. United States,

(1998). Although Galvan contends that Almendarez-Torres was

incorrectly decided, we have repeatedly rejected such arguments

on the basis that Almendarez-Torres remains binding. United

States v. Garza-Lopez,

(5th Cir.), cert.

denied,

(2005). Galvan 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. We affirm Galvan’s conviction.

SENTENCE VACATED AND REMANDED; CONVICTION AFFIRMED.