United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 11, 2006 Charles R. Fulbruge III Clerk No. 04-40862 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GABRIEL GUEL-ESCOBEDO, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:03-CR-1913-ALL -------------------- Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:* Gabriel Guel-Escobedo appeals from his guilty-plea conviction for reentry of a deported alien. For the first time on appeal, Guel-Escobedo argues that the district court erred by sentencing him under the mandatory sentencing scheme held unconstitutional in United States v. Booker, 543 U.S. 220 (2005), an argument that has been termed “Fanfan error.” United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). He also contends that Fanfan error is structural in nature.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40862 -2- Fanfan error meets the first two prongs of the plain error analysis but is not structural in nature. United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.), cert. denied, 126 S.

Ct. 464 (2005). Because Guel-Escobedo 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.

Guel-Escobedo’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Guel-Escobedo 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, 530 U.S. 466 (2000), we have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding.

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Guel-Escobedo 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.