United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006

Charles R. Fulbruge III Clerk No. 04-41533 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANSELMO MIRANDA-SANCHEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-797-ALL --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Anselmo Miranda-Sanchez (Miranda) appeals his conviction and

sentence for attempted illegal reentry after a previous

deportation. Miranda argues that the district committed

reversible error 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 Miranda’s sentence was for his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41533 -2-

prior conviction. See Booker,

,

. Nevertheless, the district court committed “Fanfan”

error by sentencing Miranda pursuant to a mandatory guidelines

scheme. United States v. Walters,

(5th Cir.

2005). Although Miranda contends that such error is structural,

he acknowledges that this argument is foreclosed by circuit

precedent; he raises the issue merely to preserve it for further

review.

As the Government concedes that Miranda preserved his Fanfan

claim, we review Miranda’s argument for harmless error. See

Walters,

. Nothing in the record indicates that

the district court would have imposed the same sentence had the

Sentencing Guidelines been advisory rather than mandatory.

Accordingly, we vacate Miranda’s sentence and remand for

resentencing in accordance with Booker.

Miranda also 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). Miranda’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States,

(1998). Although Miranda

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 No. 04-41533 -3-

States v. Garza-Lopez,

(5th Cir.), cert.

denied,

(2005). Miranda properly 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. Accordingly, Miranda’s conviction is affirmed.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.