United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 6, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41309
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
ARTURO LOPEZ-NINO,
Defendant-
Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-658-ALL
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Arturo Lopez-Nino appeals from his guilty-plea conviction for illegal reentry of a deported
alien, in violation of 8 U.S.C. § 1326. He argues that his sentence should be vacated and remanded
because the district court sentenced him under the mandatory guidelines scheme held unconstitutional
in United States v. Booker, 125 S. Ct. 738 (2005).
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
The district court committed “Fanfan” error by sentencing Lopez-Nino pursuant to a
mandatory guidelines scheme. See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).
Although Lopez-Nino contends that such error is structural, this argument is foreclosed by circuit
precedent. See id. at 463.
The Government concedes that Lopez-Nino preserved his Fanfan claim. 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.
Lopez-Nino also challenges the constitutionality of 8 U.S.C. § 1326(b). His constitutional
challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although
Lopez-Nino 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
(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, 126 S. Ct.
298 (2005). Lopez-Nino 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,
Lopez-Nino’s conviction is AFFIRMED.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.