United States v. Osorio-Carballo , 176 F. App'x 604 ( 2006 )


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  •                                                        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    this opinion should not be published and is not precedent except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
                               No. 05-40527
    - 3 -
    (2005).   Osorio concedes as much, but he raises the argument to
    preserve it for further review.
    AFFIRMED.
    

Document Info

Docket Number: 05-40527

Citation Numbers: 176 F. App'x 604

Judges: Benavides, Dennis, Higginbotham, Per Curiam

Filed Date: 4/19/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023