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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-640-ALL
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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this opinion should not be published and is not precedent except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
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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
No. 05-40527
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(2005). Osorio concedes as much, but he raises the argument to
preserve it for further review.
AFFIRMED.