                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                     UNITED STATES COURT OF APPEALS
                              FIFTH CIRCUIT                           July 7, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 05-41284
                             Summary Calendar


                        UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                   versus

          WILLYN MERCHAN-LINARES, also known as Willy Rodriguez,

                                                     Defendant-Appellant.


               Appeal from the United States District Court
                    for the Southern District of Texas
                             (7:05-CR-204-ALL)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

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 (2000). The Government asserts his guilty plea




      *
        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this opinion should not be published and is not precedent except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.
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 (2002).

     Merchan-Linares’ claim is foreclosed, however, by Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998), which held

treatment    of   prior   convictions     as   sentencing      factors   in   §

1326(b)(1) and (2) was constitutional.          Although 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, 126 S. Ct. 298 (2005).

Conceding this claim is foreclosed, he raises it only to preserve

it for further review.

                                                                  AFFIRMED




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