United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                       May 10, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-41573
                           Summary Calendar


                      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                                versus

                  GERARDO NAPOLEON MARTINEZ-CASARES,

                                                  Defendant-Appellant.


          Appeal from the United States District Court
               for the Southern District of Texas
                         (7:04-CR-431-1)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Gerardo Napoleon Martinez-Casares appeals his guilty-plea

conviction and sentence for illegal reentry following deportation,

in violation of 8 U.S.C. § 1326.    He presents two claims.

     First, he contends the district court reversibly erred when it

sentenced him pursuant to the mandatory Sentencing Guidelines held

unconstitutional in United States v. Booker, 

(2005)

(Fanfan claim).    In this regard, Martinez-Casares’ being sentenced

pursuant to a mandatory system constituted error.           See United


     *
       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this opinion should not be published and is not precedent except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.
States v. Valenzuela-Quevedo, 

, 733 (5th Cir.), cert.

denied, 

(2005).            Because he preserved his Fanfan

claim   in   district   court    by   objecting     based   on   Blakely   v.

Washington, 

(2004), we review for harmless error.

United States v. Rodriguez-Mesa, ___ F.3d ___, No. 04-41757, 

, at *5-6 (5th Cir. 15 Mar 2006).            The Government bears

the burden of proving beyond a reasonable doubt the district court

would not have sentenced Martinez-Casares differently under an

advisory system.     See United States v. Walters, 

, 464

(5th Cir. 2005).

      The sentencing transcript gives no indication whether the

court would have imposed the same sentence had the Guidelines been

advisory.     Further, contrary to the Government’s claim, that the

sentence may be reasonable does not demonstrate the district court

would have imposed the same sentence had it not been bound by the

Guidelines.     See 

      Moreover, the court’s granting a

downward departure alone does not prove beyond a reasonable doubt

the error did not affect Martinez-Casares’ sentence.             See United

States v. Garza, 

, 171 (5th Cir. 2005), cert. denied,

(2006).         Therefore, we vacate Martinez-Casares’

sentence and remand for resentencing.

      Martinez-Casares also challenges the constitutionality of

§   1326(b)’s   treatment   of   prior     felony   and   aggravated   felony

convictions as sentencing factors rather than elements of the

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 offense that must be found by a jury in the light of Apprendi v.

 New Jersey, 

(2000).            This challenge is foreclosed by

 Almendarez-Torres v. United States, 

, 235 (1998).

 Although       Martinez-Casares    contends         Almendarez-Torres    was

 incorrectly decided and that a majority of the Supreme Court would

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

 such claims on the basis that Almendarez-Torres remains binding.

 See United States v. Garza-Lopez, 

, 276 (5th Cir.),

 cert. denied, 

(2005).             Martinez-Casares concedes

 this   claim     is   foreclosed   by       Almendarez-Torres   and   circuit

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

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING




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