                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                 UNITED STATES COURT OF APPEALS
                          FIFTH CIRCUIT                       May 10, 2006

                                                        Charles R. Fulbruge III
                                                                Clerk
                           No. 05-41145
                         Summary Calendar


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              versus

                      RAYMUNDO DIAZ-ZAVALA,

                                                Defendant-Appellant.


          Appeal from the United States District Court
               for the Southern District of Texas
                        (1:05-CR-153-ALL)



Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

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 (2000); and § 1326(b) must be severed

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this opinion should not be published and is not precedent except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

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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 (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 (1998).                 Although Diaz contends



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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, 126 S. Ct.

298 (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




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