United States v. Guillen-Segura ( 2003 )

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that this opinion should not be published and is not precedent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.