United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 27, 2006

Charles R. Fulbruge III Clerk No. 04-50895 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ORLANDO REYES-PACHON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 3:04-CR-13-ALL-KC --------------------

Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

Orlando Reyes-Pachon (Reyes) appeals his conviction and

sentence following his plea of guilty to illegally reentering the

United States after having been deported. Citing United States

v. Booker,

(2005), he argues that the district court

erred in increasing his criminal history, pursuant to U.S.S.G.

§ 4A1.1(e), based on the conclusion that at the time of his

illegal reentry, he had been released from custody for less than

two years. Reyes also argues that the district court committed

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-50895 -2-

“Fanfan error” when it sentenced him pursuant to a mandatory

guideline system. Because we conclude that the district court

committed “Fanfan error” when it sentenced Reyes pursuant to a

mandatory guideline system, see United States v.

Valenzuela-Quevedo,

(5th Cir.) cert. denied,

(2005), we decline to address Reyes’s argument

that the application of § 4A1.1(e) amounted to Booker error. See

United States v. Apkan,

, 377 n.62 (5th Cir. 2005).

This court reviews a preserved Fanfan challenge for harmless

error. United States v. Walters,

(5th Cir.

2005). The Government has not met its burden of demonstrating

that the district court would have imposed the same sentence

absent its mandatory application of the Sentencing Guidelines.

See United States v. Pineiro,

(5th Cir. 2005);

United States v. Garza,

(5th Cir. 2005).

Accordingly, we remand the case for the district court to decide

whether resentencing will be appropriate.

Reyes’s constitutional challenge to the “felony” and

“aggravated felony” provisions of

(b) is

foreclosed by Almendarez-Torres v. United States,

(1998). Although Reyes 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. No. 04-50895 -3-

See United States v. Garza-Lopez,

(5th Cir.),

cert. denied,

(2005). Reyes 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.

AFFIRMED BUT REMANDED FOR THE DISTRICT COURT TO DECIDE

WHETHER TO RESENTENCE.