* 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.

United States Court of Appeals

Fifth Circuit

FILED

March 6, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-41404

Summary Calendar

 

UNITED STATES OF AMERICA,

 PlaintiffAppellee,

versus

FRANCISCO GUTIERREZ-MENDEZ,

 DefendantAppellant.

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Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:04-CR-911-ALL

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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

Francisco Gutierrez-Mendez (Gutierrez) appeals the sentence imposed upon his guilty-plea

conviction for illegal reentry. 8 U.S.C. § 1326. Gutierrez argues that the district court reversibly

erred under United States v. Booker, 125 S. Ct. 738 (2005), by sentencing him pursuant to a

mandatory application of the Sentencing Guidelines. 
-2-

There was no “Booker” error or Sixth Amendment violation because the only enhancement

to Gutierrez’s sentence was for his prior conviction. See Booker, 125 S. Ct. at 756, 769.

Nevertheless, the district court committed “Fanfan” error by sentencing Gutierrez pursuant to a

mandatory guidelines scheme. See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).

The Government concedes that Gutierrez preserved his Fanfan claim. As such, this court

reviews the claim for harmless error. See Walters, 418 F.3d at 464. This court has rejected the

argument that a Fanfan error is structural. See Walters, 418 F.3d at 463. 

There is no indication in the record that the district court would have imposed the same

sentence had the guidelines been advisory rather than mandatory. The Government has not satisfied

its burden ofshowing that the district court’s Fanfan error was harmless beyond a reasonable doubt.

See Walters, 418 F.3d at 463-64. Accordingly, we vacate the sentence and remand for resentencing

in accordance with Booker. 

Gutierrez argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. §

1326(b)(1) and (b)(2) are unconstitutional on their face and as applied in his case in light ofApprendi

v. New Jersey, 530 U.S. 466 (2000). Gutierrez’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Gutierrez contends that

Almendarez-Torres wasincorrectlydecided and that a majorityofthe SupremeCourt would overrule

Almendarez-Torresinlight ofApprendi, we have repeatedlyrejected such arguments on the basisthat

Almendarez-Torres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th

Cir.), cert. denied, 126 S. Ct. 298 (2005). Gutierrez properly concedes that his argument is

foreclosed in light of Almendarez-Torres and circuit precedent, but he raisesit here to preserve it for

further review. Accordingly, Gutierrez’s conviction is affirmed.
-3-

This court need not address at this time Gutierrez’s remaining argument challenging the

district court’s denial of hisrequest for a downward departure. See United States v. Akpan, 407 F.3d

360, 377 n.62 (5th Cir. 2005). 

AFFIRMED IN PART; VACATED AND REMANDED IN PART.