* 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this opinion should not be published and is not precedent except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

December 21, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-41262

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SALVADOR ANDRADE-GONZALEZ,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:04-CR-1045-ALL

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

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Salvador Andrade-Gonzalez (Andrade) appeals his guilty-plea

conviction of, and sentence for, violating 8 U.S.C. § 1326 by

attempting to re-enter the United States without permission after

deportation. 

Andrade argues, in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), that the 41-month term of imprisonment imposed in his

case exceeds the statutory maximum sentence allowed for the

§ 1326(a) offense charged in his indictment. He challenges the

constitutionality of § 1326(b)’s treatment of prior felony and
No. 05-41262

-2-

aggravated felony convictions as sentencing factors rather than

elements of the offense that must be found by a jury. 

Andrade’s constitutional challenge is foreclosed by

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

Although he 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, 126 S. Ct. 298 (2005). Andrade

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. 

Andrade also argues that his sentence runs afoul of United

States v. Booker, 543 U.S. 220 (2005), because he was sentenced

pursuant to a pre-Booker mandatory application of the Sentencing

Guidelines. The district court committed Fanfan error by

sentencing Andrade pursuant to a mandatory guidelines system. 

See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.

2005). As the Government concedes, Andrade’s objection under

Blakely v. Washington, 542 U.S. 296 (2004), at sentencing

preserved his claim for appeal. See United States v. RodriguezMesa, 443 F.3d 397, 404 (5th Cir. 2006). Thus, review is for

harmless error beyond a reasonable doubt. Id.
No. 05-41262

-3-

The Government fails to carry its burden of showing beyond a

reasonable doubt that the error did not affect Andrade’s

sentence. See United States v. Sibley, 448 F.3d 754, 760 (5th

Cir. 2006). 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. See id. We

therefore vacate Andrade’s sentence and remand the case for

resentencing in accordance with Booker.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.