United States v. Guillen-Segura

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 20, 2003
• Docket: 02-40205
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40205 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGELIO GUILLEN-SEGURA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-470-1 -------------------- February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Rogelio Guillen-Segura appeals from his conviction of having

been found in the United States after having been deported and

after having been convicted of a prior felony, a violation of

8 U.S.C. § 1326.

For the first time on appeal, Guillen contends that the

magistrate judge was without jurisdiction or authority to conduct

his guilty-plea hearing because the district court did not

formally refer the case to the magistrate judge until after he

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40205 -2-

had pleaded guilty. By failing to object in the district court

to the magistrate judge’s exercise of authority, Guillen 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).

Guillen argues that the “felony” and “aggravated felony”

provisions found in § 1326(b)(1) and (2) are unconstitutional

under Apprendi v. New Jersey, 530 U.S. 466 (2000), because

Congress intended the fact of a prior felony or aggravated felony

to be a sentence enhancement rather than an element to be charged

in the indictment and proved to a jury. As he concedes,

Guillen’s contention regarding Apprendi is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998).

See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000)

(noting that the Supreme Court in Apprendi, 530 U.S. at 489-90,

expressly declined to overrule the controlling Almendarez-

Torres), cert. denied, 531 U.S. 1202 (2001). Guillen raises this

issues to preserve it for review by the Supreme Court.

AFFIRMED.