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this opinion should not be published and is not precedent except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