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 2003-02

United States v. Jimenez-Aguilera ( 2003 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40209
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS JIMENEZ-AGUILERA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-949
--------------------
February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Dennis Jimenez-Aguilera (Jimenez) appeals from his guilty
plea conviction and sentence for being an alien unlawfully found
in the United States after deportation, in violation of
    8 U.S.C. § 1326
    (a), (b)(2).   For the first time on appeal, Jimenez argues
that although he consented to have his guilty plea hearing
conducted by a magistrate judge, his plea and sentence are
invalid because the magistrate judge lacked jurisdiction to
conduct the guilty plea proceeding in the absence of an order of
*
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that this opinion should not be published and is not precedent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. 02-40209
-2-
referral by the district court.   Because Jimenez did not object
in the district court to the magistrate judge’s exercise of
authority, he waived his right to raise the procedural defect in
his guilty plea proceeding as a basis for relief.    United States
v. Bolivar-Munoz,
    313 F.3d 253
    , 256-57 (5th Cir. 2002).
Jimenez contends that his indictment was unconstitutional
because it lacked an allegation that he acted with general
intent.   Jimenez raises this issue only to preserve it for
possible Supreme Court review.    Even if his guilty plea did not
waive the issue, see United States v. Cotton,
    122 S. Ct. 1781
    ,
1785-87 (2002), his argument is foreclosed by this court’s
precedent in United States v. Guzman-Ocampo,
    236 F.3d 233
    , 237-39
& n.13 (5th Cir. 2000), and United States v. Berrios-Centeno,
    250 F.3d 294
    , 299-300 (5th Cir.), cert. denied,
    534 U.S. 928
    (2001).   Jimenez argues that the felony conviction that resulted
in his increased sentence under
    8 U.S.C. § 1326
    (b)(2) was an
element of the offense that should have been charged in the
indictment.   He acknowledges that his argument is foreclosed by
the Supreme Court’s decision in Almendarez-Torres v. United
States,
    523 U.S. 224
     (1998), but he seeks to preserve the issue
for Supreme Court review in the light of Apprendi v. New Jersey,
    530 U.S. 466
    , 490 (2000).   Apprendi did not overrule Almendarez-
Torres.   Apprendi,
    530 U.S. at 489-90, 496
    ; United States v.
Dabeit,
    231 F.3d 979
    , 984 (5th Cir. 2000).
The judgment of the district court is AFFIRMED.
AFFIRMED.