#### UNITED STATES of America, Plaintiff-Appellee, v. Juan ROCHA, also known as Javier Anselmo Hernandez, Defendant-Appellant.

No. 05-40060.

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Decided March 1, 2006.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for PlaintiffAppellee.

Marjorie A. Meyers, Federal Public Defender, Philip G. Gallagher, Federal Public Defender’s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM: *

Juan Rocha, also known as Javier Anselmo Hernandez, appeals his guilty-plea conviction and sentence for illegal reentry following deportation in violation of 8 U.S.C. § 1326. He contends that the district court committed reversible error when it sentenced him pursuant to the mandatory *395United States Sentencing Guidelines system held unconstitutional in *United States v. Booker,*543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

The district court erred when it sentenced Rocha pursuant to a mandatory Guidelines system. *See United States v. Valenzuela-Quevedo,*407 F.3d 728, 733 (5th Cir.), *cert. denied,*— U.S.-, 126 S.Ct. 267, 163 L.Ed.2d 240 (2005). This error was more like that experienced by the other respondent in *Booker,*Ducan Fanfan. *See United States v. Martinez-Lugo,*411 F.3d 597, 600 (5th Cir.), *cert. denied,*— U.S.-, 126 S.Ct. 464, 163 L.Ed.2d 352 (2005). Because Rocha preserved his *Fanfan*challenge in the district court by raising an objection based on *Blakely v. Washington,*542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), we review for harmless error. *United States v. Walters,*418 F.3d 461, 463 (5th Cir. 2005). The Government bears the burden of proving beyond a reasonable doubt that the district court would not have sentenced Rocha differently under an advisory Guidelines system. *See id.*at 464.

The mere fact that the district court sentenced Rocha to the middle of the applicable Guidelines range, standing alone, fails to satisfy the Government’s burden of proving harmless error beyond a reasonable doubt. *See United States v. Garza,*429 F.3d 165, 170-71 (5th Cir.2005) *(Booker*error). Further, the sentencing transcript is silent with regard to whether the district court would have applied the same sentence had the Guidelines been advisory rather than mandatory. Therefore, the Government has failed to carry its burden of showing beyond a reasonable doubt that the error did not affect Rocha’s sentence. *See id.*We therefore vacate Rocha’s sentence and remand the case *for re*sentencing.

Rocha also challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury in light of *Apprendi v. New Jersey,*530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Rocha’s constitutional challenge is foreclosed by *Almendarez-Torres v. United States,*523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Rocha 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*remains binding. *See United States v. Garza-Lopez,*410 F.3d 268, 276 (5th Cir.), *cert. denied,*— U.S.-, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Rocha properly concedes that his argument is foreclosed in light of *Almendarez-Torres*and circuit precedent, but raises it here to preserve it for further review.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.

*

 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.