* Pursuant to 5 TH C IR

. 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 5 TH C IR

. 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,

Plaint iffAppellee,

versus

FRANCISCO GUTIERREZ-MENDEZ,

DefendantAppellant.

------------------------------------------------------------------ Appeal from the United States District Court

for the Southern District of Texas

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

------------------------------------------------------------------

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 und er U

nited 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 convictio n. See Booker , 125 S. Ct. at 756, 769.

Nevertheless, the district court c o mmit t ed “Fanfan” error by sentencing Gutierrez pursuant to a

mandatory guidelines scheme. S ee 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 co urt

reviews the claim for harmless error. S ee 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 impo sed the same

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

its burden of showing 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

.

G utierrez 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 of Apprendi

v. New Jersey

, 530 U.S. 466 (2000). Gutierrez’s constit ut ional challenge is foreclosed by

Almendarez-Torres v. United States , 523 U.S. 224, 235 (1998). Although Gutierrez 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 r emains binding. S ee 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 raises it here to preserve it for

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

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

district court’s denial of his request for a downward departure. S ee United States v. Akpan

, 407 F.3d

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

AFFIRMED IN PART; VACATED AND REMANDED IN PART.