UNITED STATES of America, Plaintiff-Appellee, v. Jose Liborio CISNEROS-JIMENEZ, Defendant-Appellant, 168 F. App'x 598

PER CURIAM: Jose Liborio Cisneros-Jimenez appeals his guilty-plea conviction and sentence for being found in the United States, without permission, following deportation. See 8 U.S.C. § 1326(a), (b). He contends that the sentencing provisions in 8 U.S.C. § 1326(

b) are unconstitutional because they do not require the fact of a prior felony or aggravated felony conviction to be treated as an element of the offense and proved beyond a reasonable doubt. Cisneros-Jimenez’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 Cisneros-Jimenez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v.

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), 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). Cisneros-Jimenez 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. Accordingly, Cisneros-Jimenez’s conviction is AFFIRMED.

Cisneros-Jimenez also argues that the district court committed reversible error when it sentenced him pursuant to the mandatory United States Sentencing Guidelines scheme held unconstitutional in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). By sentencing Cisneros-Jimenez under a mandatory guidelines regime, the district court committed what this court refers to as Fanfan error. See United States v. Walters, 418 F.3d 461, 463 (5th Cir.2005).

The Government concedes that CisnerosJimenez preserved his Fanfan claim for appellate review, that the district court’s actions are reviewed for harmless error, and that it cannot show that the error was harmless. See id. at 463-64. The sentencing transcript supports the Government’s concession. We therefore we VACATE Cisneros-Jimenez’s sentence and REMAND the case for resentencing. CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.