                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 1, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-41242
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

CARLOS MANUEL CASTILLO-SUAREZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:04-CR-812-1
                      --------------------

Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Carlos Manuel Castillo-Suarez (Castillo) appeals his

conviction and sentence for illegal reentry.   He argues that

(1) his Massachusetts conviction for indecent assault and battery

of a minor was not a “crime of violence” under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) (2004) and (2) the “felony” and “aggravated

felony” provisions of § 1326(b) are unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000).




     *
       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this opinion should not be published and is not precedent except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.
                             No. 05-41242
                                  -2-

     We hold that Castillo’s violation of MASS. GEN. LAWS ch. 265,

§ 13B constitutes “sexual abuse of a minor,” as that term is

commonly understood, for purposes of the “crime of violence”

sentencing enhancement.     See § 2L1.2, comment. (n.1(B)(iii));

United States v. Izaguirre-Flores, 405 F. 3d 270, 275 (5th Cir.),

cert. denied, 126 S. Ct. 253 (2005).    We further hold that the

waiver provision contained in Castillo’s plea agreement is

construed against the Government as the drafter.     See United

States v. Somner, 127 F.3d 405, 408 (5th Cir. 1997).    Because

Castillo’s plea agreement does not specifically waive the right

to attack the constitutionality of § 1326(b), we conclude that

the waiver provision does not preclude this appeal.     See id.

Because Castillo would be entitled to a lesser sentence if his

constitutional challenge were successful, he has standing.        See

Henderson v. Stalder, 287 F.3d 374, 380 (5th Cir. 2002).

     Nevertheless, Castillo’s constitutional challenge to

§ 1326(b) is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998).    Although Castillo 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, 126 S.

Ct. 298 (2005).   Castillo properly concedes that his argument is
                          No. 05-41242
                               -3-

foreclosed in light of Almendarez-Torres and circuit precedent,

but he raises it here to preserve it for further review.

     AFFIRMED
