United States v. Nunez-Munoz , 168 F. App'x 566 ( 2006 )

PER CURIAM: ^*

Nicolas Nunez-Munoz (Nunez) appeals his conviction and sentence for illegal reentry after a previous deportation. Nunez 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 Nunez’s sentence was for his prior conviction. See Booker, 125 S.Ct. at 756, 769. Nevertheless, the district court committed “Fanfan” error by sentencing Nunez pursuant to a mandatory guidelines scheme. See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). We have previously rejected Nunez’s claim that such error is “ ‘structural’ in nature.” See id. at 463.

The Government concedes that Nunez preserved his Fanfan argument. As such, this court reviews the claim for harmless error. See id. 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.

Nunez 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). Nunez’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 Nunez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres 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). Nunez 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, Nunez’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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.