United States v. Lopez-Guzman

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 29, 2003
• Docket: 02-40699
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 28, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-40699 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

IRINEO LOPEZ-GUZMAN, also known as Jorge Guajardo-Herrera, also known as Jorge Lopez-Guzman, also known as Hector Lopez-Guzman, also known as Hector Montero-Hernandez,

Defendant-Appellant,

No. 02-40711 Summary Calendar

IRINEO LOPEZ-GUZMAN, also known as Jorge,

Defendant-Appellant.

-------------------- Appeals from the United States District Court for the Southern District of Texas USDC No. B-01-CR-43-1 USDC No. B-98-CR-563-2 --------------------

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent No. 02-40699 c/w No. 02-40711 -2-

Irineo Lopez-Guzman appeals from guilty-plea convictions

for illegal entry into the United States following deportation for

an aggravated felony and revocation of supervised release on a

sentence for transporting an illegal alien within the United

States. 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(A)(v)(II), 1326.

Lopez-Guzman argues that the court erred in denying his

motion to grant a downward departure on the basis of a

significantly diminished mental capacity. Lopez-Guzman contends

that the court misunderstood its authority to consider whether he

suffered from a volitional impairment under U.S.S.G. § 5K2.13.

There is no indication in the record that the court did not

understand its authority to depart on these grounds. Accordingly,

this court lacks jurisdiction to review a refusal to grant a

downward departure. See United States v. Thames, 214 F.3d 608, 612

(5th Cir. 2000).

Lopez-Guzman argues that the magistrate judge lacked the

jurisdiction to conduct his guilty-plea hearings. Lopez-Guzman

concedes that his argument is foreclosed by United States

v. Bolivar-Munoz, 313 F.3d 253 (5th Cir. 2002), but he seeks to

preserve the issue for Supreme Court review. The court held that

the error complained of was procedural, not jurisdictional, and

could be waived if not properly preserved. Bolivar-Munoz, 313 F.3d

at 256-57. Lopez-Guzman did not object to the magistrate judge’s

except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-40699 c/w No. 02-40711 -3-

actions below, therefore he has waived his right to raise the

referral issue in this court. See id at 257. Because Bolivar-

Munoz is still good law and one panel of this court cannot overrule

another absent superceding Supreme Court or en banc authority,

Lopez-Guzman’s argument is foreclosed. See United States v. Ruff,

984 F.2d 635, 640 (5th Cir. 1993).

Lopez-Guzman also argues that for the first time on

appeal that 8 U.S.C. § 1326(b)(2) is unconstitutional because it

treats a prior conviction for an aggravated felony as a mere

sentencing factor and not an element of the offense. Lopez-Guzman

concedes that his argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998), but he seeks to preserve the

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).

Accordingly, this argument lacks merit.

AFFIRMED.