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. 04-41663 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

RENE ALBERTO GARCIA-MEJIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-704 --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Rene Alberto Garcia-Mejia appeals from his guilty-plea

conviction for being found in the United States after previous

deportation. For the first time on appeal, Garcia-Mejia argues

that the district court erred by sentencing him under the

mandatory sentencing scheme held unconstitutional in United

States v. Booker,

(2005), an argument that has been

termed “Fanfan error.” United States v. Walters,

(5th Cir. 2005). He also contends that Fanfan error is

structural in nature. We need not decide the applicability of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41663 -2-

the waiver provision in this case because the issues that Garcia-

Mejia raises are either foreclosed or lack arguable merit.

Fanfan error meets the first two prongs of the plain error

analysis but is not structural in nature. United States v.

Martinez-Lugo,

(5th Cir.), cert. denied,

(2005). Because Garcia-Mejia has failed to

demonstrate that the sentencing judge would have reached a

different result if an advisory sentencing scheme had been

utilized, his claim of Fanfan error does not warrant relief. See

id. at 601.

Garcia-Mejia also argues that

(b)(1) and

(b)(2) are unconstitutional. Garcia-Mejia’s constitutional

challenge is foreclosed by Almendarez-Torres v. United States,

(1998). Although Garcia-Mejia contends that

Almendarez-Torres was incorrectly decided and that a majority of

the Supreme Court would overrule Almendarez-Torres in light of

Apprendi v. New Jersey,

(2000), 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). Garcia-

Mejia 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, the district court’s judgment is AFFIRMED.