United States v. Rodriguez

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. 02-41019 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOMAS RODRIGUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-156-ALL --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Tomas Rodriguez 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), cert. denied, 2003 WL 729161 (U.S.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41019 -2-

Mar. 31, 2003). By failing to object in the district court to

the magistrate judge’s exercise of authority, Rodriguez 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. Rodriguez 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,

Rodriguez’s argument is foreclosed.

AFFIRMED.