UNITED STATES of America, Plaintiff-Appellee, v. Maximino NINO-RODRIGUEZ, Defendant-Appellant, 155 F. App'x 746

PER CURIAM: Maximino Nino-Rodriguez appeals the sentence imposed following his guilty-plea conviction of illegally re-entering the United States after having been deported, in violation of 8 U.S.C. § 1326. The district court sentenced Nino to 41 months in prison and three years of supervised release. Nino claims his sentence is illegal under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because it was imposed pursuant to a mandatory application of the Sentencing Guidelines. In district court, Nino objected to his sentence under Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). He now raises the type of error raised by a second respondent in Booker, Ducan Fanfan (Fanfan error), by claiming that imposition of a sentence pursuant to a mandatory Guidelines regime violated his rights. See Booker, 125 S.Ct. at 750, 768-69. The Government concedes that Nino at least “arguably” preserved his Fanfan-error claim for appeal and that the issue is reviewed for harmless error.

The Government explicitly waives any argument that the Fanfan error at Nino’s sentencing was harmless and does not oppose a remand for resentencing in accordance with Booker. For the first time on appeal, Nino contends that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(

b) are unconstitutional. As Nino concedes, this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which this court must follow “unless and until the Supreme Court itself determines to overrule it”. United States v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.) (internal quotation marks and citation omitted), cert. denied, — U.S. —, 126 S.Ct. 253, 163 L.Ed.2d 231 (2005). AFFIRMED IN PART; VACATED AND REMANDED IN PART FOR RE-SENTENCING. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.