#### UNITED STATES of America, Plaintiff-Appellee, v. Saul VILLEDA-TAVERA, Defendant-Appellant.

No. 05-40132

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

June 9, 2006.

James Lee Turner, Assistant U.S. Attorney, Julia Bowen Stern, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

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

*436Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM: *

Saul Villeda-Tavera (Villeda) appeals following his guilty-plea conviction for being found in the United States after a previous deportation, in violation of 8 U.S.C. § 1326. Villeda contends that his sentence should be vacated and remanded because the district court sentenced him under the mandatory guidelines scheme held unconstitutional in *United States v. Booker,*543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

As the district court sentenced Villeda under a mandatory guidelines regime, it committed *Fanfan*error. *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). When a defendant has preserved a *Fanfan*challenge in the district court, this court reviews for harmless error. *United States v. Walters,*418 F.3d 461, 463 (5th Cir.2005); *Valenzuela-Quevedo,*407 F.3d at 732-33. Villeda’s *Fanfan*challenge was preserved by his objection in the district court under *Blakely v. Washington,*542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). *See United States v. Reyes-Celestino,*443 F.3d 451, 453 (5th Cir.2006).

We conclude that the Government has not met its burden of showing beyond a reasonable doubt that the district court would have imposed the same sentence absent the error. *See id.; United States v. Garza,*429 F.3d 165, 170-71 (5th Cir. 2005), *cert. denied,*— U.S. -, 126 S.Ct. 1444, 164 L.Ed.2d 143 (2006). We therefore vacate Villeda’s sentence and remand for resentencing.

Villeda also challenges the constitutionality of § 1326(b) in light of *Apprendi v. New Jersey,*530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Villeda’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 Villeda 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). Villeda 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. Therefore, Villeda’s conviction is affirmed.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

*

 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.