United States v. Gabarete-Guardado

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 6, 2003
• Docket: 02-40868
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 24, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-40868 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ANTONIO GABARETE-GUARDADO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-42-1 --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Jose Antonio Gabarete-Guardado appeals his guilty-plea

conviction for illegal reentry after deportation. He argues

for the first time on appeal that 8 U.S.C. § 1326(b)(2) is

unconstitutional because it does not require the prior aggravated

felony conviction to be proved as an element of the offense.

Gabarete concedes that his argument is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224 (1998). He nevertheless

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40868 -2-

seeks to preserve this issue for Supreme Court review in light of

the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi,

530 U.S. at 489-90; see also United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001).

Gabarete’s argument is foreclosed.

Gabarete also contends for the first time on appeal that the

magistrate judge lacked jurisdiction to conduct his guilty plea

hearing because there was no order of referral from the district

court. By failing to object in the district court to the

magistrate judge’s exercise of authority, Gabarete waived

his right to challenge this procedural defect in his plea

proceeding. United States v. Bolivar-Munoz, 313 F.3d 253, 257

(5th Cir. 2002), cert. denied, S. Ct. , 2003 WL 729161

(U.S. Mar. 31, 2003). The judgment of the district court is

AFFIRMED.