United States Court of Appeals
                                                                             Fifth Circuit
                                                                           F I L E D
                     UNITED STATES COURT OF APPEALS
                              FIFTH CIRCUIT                                March 22, 2006

                                                                        Charles R. Fulbruge III
                                                                                Clerk
                                No. 05-40078
                              Summary Calendar


                        UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                      versus

                             JUAN ROMAN-NOYOLA,

                                                            Defendant-Appellant.



              Appeal from the United States District Court
                   for the Southern District of Texas
                           (5:04-CR-1348-ALL)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Juan     Roman-Noyola    appeals      the    sentence    imposed      upon    his

guilty-plea conviction for illegal reentry.                 See 8 U.S.C. § 1326.

Roman claims the district court reversibly erred under United

States   v.   Booker,   

,      125   S.   Ct.   738   (2005),     by

sentencing     him   pursuant    to    a   mandatory        application      of    the

Sentencing Guidelines.        There was no Booker error (Sixth-Amendment

violation) because the only enhancement to Roman’s sentence was for



     *
       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this opinion should not be published and is not precedent except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.
his prior conviction.       See 

at 756, 769.             Instead,

the district court committed Fanfan error by sentencing Roman under

a mandatory guidelines scheme.            See United States v. Walters, 

, 463-64 (5th Cir. 2005).

       The Government concedes Roman preserved his Fanfan claim.               As

such, we review for harmless error.              See 

    This court

has rejected that Fanfan error is structural.               See 

       The record does not show the district court would have imposed

the same sentence had the guidelines been advisory rather than

mandatory.    The Government has not satisfied its burden of showing

the Fanfan error was harmless beyond a reasonable doubt.                  See 

   Accordingly, we vacate Roman’s sentence and remand for

resentencing in accordance with Booker.

       Roman next asserts 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 the light of Apprendi

v.   New   Jersey,   

    (2000).       Roman’s   constitutional

challenge is foreclosed by Almendarez-Torres v. United States, 

, 235 (1998).            Although Roman contends that case was

incorrectly decided and that a majority of the Supreme Court would

overrule it in the light of Apprendi, we have repeatedly rejected

such   contentions    on   the    basis       that   Almendarez-Torres    remains

binding.    See United States v. Garza-Lopez, 

, 276 (5th



                                          2
Cir.), cert. denied, 

(2005).   Roman concedes this

claim is foreclosed in the light of Almendarez-Torres and circuit

precedent; he raises it to preserve it for further review.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING




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