* Pursua nt to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

February 7, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40105

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO CASTILLO-RODRIGUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court

for the Southern District of Texas

(5:04-CR-1535-ALL)

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

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM: *

Defendant-Appellant Francisco Castillo-Rodriguez (“Castillo”)

appeals from his guilty-plea conviction for attempted reentry of a

deported alien, in violation of 8 U.S.C. § 1326. Castillo 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

, 125 S. Ct. 738

(2005). He also argues that the district court erroneously2

determined his prio r state conviction for simple possession of

cocaine is an aggravated felony.

As the district court sentenced Castill o under a mandatory

Guidelines regime, it committed Fanfan error. S ee United States v.

Valenzuela-Quevado

, 407 F.3d 728, 733 (5th Cir.), cert. denied

, 126

S. Ct. 267 (2005); see also United States v. Walters

, 418 F.3d 461,

463 (5th Cir. 2005)(discussing the d ifference between Sixth

Amendment Booker error and Fanfan error). “[I]f either the Sixth

Amendment issue present ed in B ooker or the issue presented in

Fanfan is preserved in the district court by an objection, we will

ordinarily vacate the sentence and remand, unless we can say the

error is harmless under Rule 52(a) of the Federal Rules of Criminal

Procedure.” U nited States v. Pineiro

, 410 F.3d 282, 284-85 (5th

Cir. 2005) (internal quotation ma rks and citation omitted). The

government concedes that Castillo’s objection on the basis of

Blakely v. Washington

, 542 U.S. 2 96 (2004), w as sufficient to

preserve his Fanfan claim.

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. S ee Pineiro

, 410

F.3d at 286; United States v. Garza

, 429 F.3d 165, 170-71 (5th Cir.

2005). We therefore VACATE Castillo’s sentence and REMAND for resentencing. As the F anfan error requires remand for re-sentencing,

we need not address the other sentencing error claimed by Castillo.

See United States v. Akpan

, 407 F.3d 360, 377 n.62 (5th Cir. 2005).3

Castillo also challenges the constitutionality of 8 U.S.C. §

1326(b). His constitutional challenge is foreclosed by A lmendarezTorres v. United States

, 523 U.S. 224, 235 (1998). Although

Castillo contends that Almendarez-Torres was incorrectly decided

and that a majority of the Supreme Court would overrule AlmendarezTorres 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. S ee United States v. G arzaLopez , 410 F.3d 268, 276 (5th Cir.), cert. denied , 126 S. Ct. 298

(2005). Castillo forthrightly concedes that his argument is

foreclosed by Almendarez-Torres and circuit preceden t

, but he

raises it here solely to preserve it for further review.

Accordingly, Castillo’s conviction is AFFIRMED.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.