UNITED STATES of America, Plaintiff-Appellee, v. Hector DE LA GARZA-ROJAS, Defendant-Appellant, 169 F. App'x 393

PER CURIAM: Hector De La Garza-Rojas (De La Garza) appeals his conviction and sentence for illegal reentry after a previous deportation. De La Garza argues that the district reversibly erred under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by sentencing him pursuant to a mandatory application of the Sentencing Guidelines. There was no “Booker” error or Sixth Amendment violation because the only enhancement to De La Garza’s sentence was for his prior conviction. See Booker, 125 S.Ct. at 756, 769.

Nevertheless, the district court committed “Fanfan” error by sentencing De La Garza pursuant to a mandatory guidelines scheme. See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.2005). Although De La Garza contends that such error is structural, he acknowledges that this argument is foreclosed by circuit precedent; he raises the issue here only for preservation purposes. The Government concedes that De La Garza preserved his Fanfan claim. As such, this court reviews the claim for harmless error. See Walters, 418 F.3d at 464.

There is no indication in the record that the district court would have imposed the same sentence had the guidelines been advisory rather than mandatory. Accordingly, we VACATE the sentence and REMAND for resentencing in accordance with Booker. De La Garza next argues 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 light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). De La Garza’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 De La Garza contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule AlmendarezTorres in light of Apprendi, 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).

De La Garza 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, De La Garza’s conviction is AFFIRMED. AFFIRMED IN PART; VACATED AND REMANDED IN PART. 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.