* 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this opinion should not be published and is not precedent except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 9, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 05-40010

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROLANDO GARCIA-LEAL,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:04-CR-1828-ALL

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

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Rolando Garcia-Leal (Garcia) appeals his guilty-plea

conviction and sentence for illegal reentry after deportation. 

He was sentenced to 41 months of imprisonment and three years of

supervised release. Garcia asserts that his sentence is invalid

in light of United States v. Booker, 125 S. Ct. 738 (2005). 

Because the district court sentenced Garcia under a mandatory

guidelines regime, it committed a Fanfan error. See United

States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert.
No. 05-40010

-2-

denied, 126 S. Ct. 267 (2005). Because the Government concedes

that Garcia preserved his Fanfan claim, this court reviews for

harmless error. United States v. Walters, 418 F.3d 461, 463-64

(5th Cir. 2005); United States v. Mares, 402 F.3d 511, 520 (5th

Cir.), cert. denied, 126 S. Ct. 43 (2005). Under this standard

of review, the Government bears the burden of proving beyond a

reasonable doubt that the district court would not have sentenced

Garcia differently under an advisory guidelines sentencing

regime. Walters, 418 F.3d at 464. The record contains no

indication that the district court would have imposed the same

sentence absent the error. The Government thus cannot meet its

burden. Accordingly, Garcia’s sentence is vacated and the case

is remanded for resentencing.

Garcia also asserts that the district court erred in

ordering him to cooperate in the collection of a DNA sample as a

condition of supervised release and that this condition should

therefore be vacated. This claim is dismissed for lack of

jurisdiction because it is not ripe for review. United States v.

Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir. 2005). 

Garcia further asserts that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional. 

Garcia’s constitutional challenge is foreclosed by

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

Although Garcia contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule
No. 05-40010

-3-

Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), 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). Garcia 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.

APPEAL DISMISSED IN PART FOR LACK OF JURISDICTION; SENTENCE

VACATED; REMANDED FOR RESENTENCING.