UNITED STATES of America, Plaintiff-Appellee, v. Raymundo DIAZ-ZAVALA, Defendant-Appellant, 180 F. App'x 511

PER CURIAM: Raymundo Diaz-Zavala appeals his guilty-plea conviction and sentence for being found unlawfully in the United States after deportation, having previously been convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(

a) and (b). He asserts: the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (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); and § 1326(

b) must be severed from the remainder of the statute and his conviction reduced to one under § 1326(a). Diaz’s conviction was pursuant to a plea agreement, in which he waived: “any right to have facts that the law makes essential to the punishment either (1) charged in the indictment or (2) proven to a jury or (3) proved beyond a reasonable doubt”; and, other than for a sentence above the statutory maximum, the right to appeal his sentence.

The Government contends: the waiver provisions in Diaz’s plea agreement preclude his attack on the constitutionality of § 1326(b); and, as a result of the waivers, Diaz lacks standing to challenge the constitutionality of § 1326(b). The waiver-of-appeal provision is construed against the Government as the drafter of the plea agreement. See United States v. Somner, 127 F.3d 405, 408 (5th Cir.1997). Because Diaz’s plea agreement does not specifically waive the right to attack the constitutionality of § 1326(b), we conclude the waiver provision does not preclude this appeal. See id.

Because Diaz would be entitled to a lesser sentence if his constitutional challenge were successful, he presumably has standing. See Henderson v. Stalder, 287 F.3d 374, 380 (5th Cir.), cert. denied, 537 U.S. 1048, 123 S.Ct. 602, 154 L.Ed.2d 521 (2002). Even if he has standing, however, Diaz cannot succeed because his 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 Diaz contends Almendarez-Torres was incorrectly decided and a majority of the Supreme Court would overrule Almendarez-Torres in the light of Apprendi, we have repeatedly rejected such contentions 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). Diaz concedes his contention is foreclosed in the light of Almendarez-Torres and circuit precedent, but raises it here to preserve it for further review. AFFIRMED. 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.