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this opinion should not be published and is not precedent except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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