United States v. Contreras-Montoya , 71 F. App'x 438 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 20, 2003
Charles R. Fulbruge III
Clerk
No. 02-41341
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERARDO CONTRERAS-MONTOYA,
also known as Gerardo Montoya-Contreras,
Defendant-Appellant.
Consolidated with
No. 02-41566
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERARDO CONTRERAS-MONTOYA, also known as Arturo Lopez-Mansanero,
also known as Juan Ibarra-Olvera,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. B-01-CR-430-1 & B-02-CR-322-ALL
--------------------
Before JONES, WIENER, and BENAVIDES, 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that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-41341 c/w
No. 02-41566
-2-
Gerardo Contreras-Montoya (Contreras) appeals his 2002
guilty-plea conviction for being found present in the United
States following deportation in violation of 8 U.S.C. § 1326(a),
and the revocation of supervised release from his 2001 guilty-
plea conviction for illegally entering the United States.
Contreras’ guilty-plea to the 8 U.S.C. § 1326(a) charge was taken
by the magistrate judge and approved by the district court after
Contreras gave his written consent. Contreras argues that his
guilty plea and conviction are void because a FED. R. CRIM. P. 11
colloquy may never be delegated to a non-Article III magistrate
judge. He concedes that this argument is foreclosed by circuit
precedent but raises it to preserve the issue for Supreme Court
review.
We held in United States v. Dees, 125 F.3d 261, 266-69 (5th
Cir. 1997), that 28 U.S.C. § 636(b)(3) provides a magistrate
judge with the statutory authority to conduct a FED. R. CRIM.
P. 11 guilty plea proceeding and that this delegation of
authority does not violate the Constitution. Therefore,
Contreras’ argument is foreclosed, and the judgments of the
district court are AFFIRMED.
The Government’s unopposed motion for summary affirmance and
to waive the briefing requirement is GRANTED. The Government’s
request to extend the briefing period is DENIED as unnecessary.