UNITED STATES of America, Plaintiff-Appellee, v. Javier VILLELA-ESPINOSA, Defendant-Appellant, 170 F. App'x 903

PER CURIAM: Javier Villela-Espinosa appeals his conviction and sentence for illegal reentry following deportation. Villela claims the district court committed reversible error 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 (Fanfan error). The Government concedes that Villela has preserved this issue for appeal. Such error is not structural. United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.2005).

On the other hand, the Government has not shown beyond a reasonable doubt that the error was harmless. See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.2005). Accordingly, Villela’s sentence is vacated, and this case is remanded for resentencing. Villela also asserts the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Villela’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 Villela contends that 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 assertions 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). Villela concedes his assertion 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. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.