                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 19, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-40527
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RIGOBERTO OSORIO-CARBALLO,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 2:04-CR-640-ALL
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Rigoberto Osorio-Carballo (Osorio) pleaded guilty to count 1

of an indictment charging him with entering the United States

illegally following deportation.   Osorio was sentenced to a

71-month term of imprisonment and to a three-year period of

supervised release.   Osorio gave timely notice of his appeal.

     Osorio challenges the constitutionality of 42 U.S.C.

§ 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the


     *
       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this opinion should not be published and is not precedent except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. 05-40527
                              - 2 -

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).   The Government argues that the

waiver provision in Osorio’s plea agreement precludes his attack

on the constitutionality of § 1326(b).   The Government argues

that as a result of the waiver Osorio 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

Osorio’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

Osorio 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).

     Osorio’s argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998), in which the Supreme

Court held that treatment of prior convictions as sentencing

factors in § 1326(b)(1) and (2) was constitutional.    Although

Osorio contends that a majority of the Supreme Court would now

consider Almendarez-Torres to be incorrectly decided in light of

Apprendi, “[t]his court has repeatedly rejected arguments like

the one made by [Osorio] 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
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                               - 3 -

(2005).   Osorio concedes as much, but he raises the argument to

preserve it for further review.

     AFFIRMED.
