United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 8, 2006

Charles R. Fulbruge III Clerk No. 04-41518 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE GUADALUPE HERNANDEZ-URBINA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas No. 5:04-CR-498-ALL --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Hernandez-Urbina appeals the 30-month sentence imposed

following his guilty-plea conviction of illegal reentry into the

United States after being deported. He contends that his sentence

is illegal under United States v. Booker,

(2005),

because it was imposed pursuant to a mandatory application of the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circum- stances set forth in 5TH CIR. R. 47.5.4. No. 04-41518 -2-

United States Sentencing Guidelines. He thus alleges a “Fanfan”

error. See United States v. Walters,

(5th Cir.

2005). Fanfan error is not structural error,

but the govern-

ment concedes that Fanfan error was preserved, so we review for

harmless error, see

.

The government fails to carry its burden of showing beyond a

reasonable doubt that the Fanfan error had no effect on Hernandez-

Urbina’s sentence. See

We therefore vacate the sentence and

remand for resentencing in accordance with Booker. See

Hernandez-Urbina contends that the sentence-increasing provi-

sions of

(b) are unconstitutional and that this

court should remand for resentencing to no more than two years in

prison under

(a). As he concedes, this contention

is foreclosed by Almendarez-Torres v. United States,

(1998).

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.