UNITED STATES of America, Plaintiff-Appellee, v. Willyn MERCHAN-LINARES, also known as Willy Rodriguez, Defendant-Appellant, 188 F. App'x 272

PER CURIAM: In contesting his sentence for being present in the United States after deportation, in violation of 8 U.S.C. § 1326(

a) and (b), Willyn Merchan-Linares challenges the constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Government asserts his guilty plea waived this issue and that, as a result, he lacks standing to challenge § 1326(b)’s constitutionality. Merchan-Linares’ guilty plea did not specifically waive the right to contest the constitutionality of § 1326(b).

Accordingly, his plea does not preclude this appeal, see United States v. Somner, 127 F.3d 405, 408 (5th Cir.1997); and, because he would be entitled to a lesser sentence if this challenge were successful, he 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). Merchan-Linares’ claim is foreclosed, however, by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held treatment of prior convictions as sentencing factors in § 1326(b)(1) and (2) was constitutional.

Athough Merchan-Linares contends a majority of the Supreme Court would now consider Almendarez-Torres to be incorrectly decided in the light of Apprendi, “[t]his court has repeatedly rejected arguments like the one made by [Merchan-Linares] and has held that Almendarez-Torres remains binding despite Apprendi. ” 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). Conceding this claim is foreclosed, he raises it only 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R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.