United States v. Simmons ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40476
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIYELL MICHAEL SIMMONS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-01-CR-17-ALL
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March 6, 2003
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Daniyell Michael Simmons pleaded guilty to one count of
possession with intent to distribute in excess of five grams of
cocaine base, and was sentenced as a career offender to 216 months’
imprisonment. He raises three issues for appeal.
Simmons first asserts that 21 U.S.C. § 841 is unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). He
concedes that this argument is foreclosed by our decision in United
*
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that this opinion should not be published and is not precedent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. 02-40476
-2-
States v. Slaughter, 238 F.3d 580 (5th Cir. 2000), cert. denied,
532 U.S. 1045 (2001), but he raises it in order to preserve it for
further review. This issue is without merit.
Simmons next argues that the magistrate judge lacked
jurisdiction to conduct his guilty plea proceedings because no
order of referral was entered, and therefore his conviction and
sentence must be vacated. This issue is foreclosed by our recent
decision in United States v. Bolivar-Munoz, __ F.3d __ (5th Cir.
Nov. 20, 2002, Nos. 01-40967, 01-41466), 2002 WL 31599025.
Although we concluded that the district court must enter a proper
referral order, we also concluded that the failure to do so was a
procedural error, which can be waived, rather than a jurisdictional
defect. See id. at *2-3. As Simmons consented to proceeding
before the magistrate judge and lodged no objection to the absence
of a referral order, he has waived the procedural error. See id.Finally, Simmons argues that his prior Texas conviction for
unauthorized use of a motor vehicle (“UUMV”) was not a crime of
violence as defined in U.S.S.G. § 4B1.2, and therefore should not
have been used as a basis for his career-offender enhancement under
§ 4B1.1. In United States v. Charles, 301 F.3d 309, 314 (5th Cir.
2002)(en banc), this court held that a crime is a “crime of
violence” under § 4B1.2(a)(2) “only if, from the face of the
indictment, the crime charged or the conduct charged presents a
serious potential risk of injury to a person.” It is impossible to
review the prior indictment under this standard because that
No. 02-40476
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indictment is not found in the present record. Therefore, we
VACATE Simmons’ sentence and REMAND to the district court for
resentencing consistent with the decision in Charles. See United
States v. Lee, 310 F.3d 787, 791 (5th Cir. 2002).
SENTENCE VACATED; REMANDED.