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this opinion should not be published and is not precedent except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

February 22, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 05-40100

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RUFINO MONDRAGON-GUSMAN,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:04-CR-1349-1

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

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Rufino Mondragon-Gusman (Mondragon) appeals his conviction

and sentence for illegal reentry after a previous deportation. 

Mondragon argues that the district reversibly erred under United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), by

sentencing him pursuant to a mandatory application of the

Sentencing Guidelines. There was no “Booker” error or Sixth

Amendment violation because the only enhancement to Mondragon’s

sentence was for his prior conviction. See Booker, 125 S. Ct. at
No. 05-40100

-2-

756, 769. Nevertheless, the district court committed “Fanfan”

error by sentencing Mondragon pursuant to a mandatory guidelines

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

Cir. 2005). We have previously rejected Mondragon’s claim that

such error is “structural” in nature. See id. at 463.

The Government concedes that Mondragon preserved his Fanfan

argument. As such, this court reviews the claim for harmless

error. See id. at 464. As the Government further concedes,

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. Accordingly, we vacate the

sentence and remand for resentencing in accordance with Booker. 

Because we vacate Mondragon’s sentence due to the mandatory

application of the guidelines, it is not necessary to address his

additional claim that the district court committed reversible

error by assessing a 12-level increase under U.S.S.G.

§ 2L1.2(b)(1)(B). See United States v. Akpan, 407 F.3d 360, 377

n.62 (5th Cir. 2005). 

Finally, Mondragon 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). 

Mondragon’s constitutional challenge is foreclosed by AlmendarezTorres v. United States, 523 U.S. 224, 235 (1998). Although

Mondragon contends that Almendarez-Torres was incorrectly decided
No. 05-40100

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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). Mondragon

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, Mondragon’s

conviction is affirmed.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.