United States v. Molina-Guerra

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 1, 2003
• Docket: 02-40968
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 1, 2003

Charles R. Fulbruge III Clerk No. 02-40968 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDIL DONALDO MOLINA-GUERRA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-139-ALL --------------------

Before JONES, DUHÉ, and CLEMENT, Circuit Judges.

PER CURIAM:1

Edil Donaldo Molina-Guerra (Guerra) appeals his guilty-plea

conviction for illegal reentry after deportation. He argues 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. He concedes,

however, that his argument is foreclosed by United States v.

Bolivar-Munoz, 313 F.3d 253, 257 (5th Cir. 2002). By failing to

object in the district court to the magistrate judge’s exercise of

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. authority, Molina waived his right to challenge this procedural

defect in his plea proceeding. Id. at 257.

He also argues for the first time on appeal that the “felony”

and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are

unconstitutional because the statute does not require the fact of

a prior felony or aggravated felony conviction to be charged in the

indictment and proved as an element of the offense. Molina

concedes that his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224 (1998). He nevertheless 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). Therefore, Molina’s argument is foreclosed.

Molina seeks remand pursuant to FED. R. CRIM. P. 36 for

correction of a clerical error in the judgment. The Government

concedes that remand is appropriate because the written judgment

does not reflect that at sentencing, the court granted its motion

to remit the $100 special assessment. Accordingly, this case is

REMANDED for the sole purpose of allowing the district court to

correct the clerical error in the judgment.

AFFIRMED, REMANDED FOR CORRECTION OF CLERICAL ERROR IN

JUDGMENT.