United States v. Gamez-Tovar ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 24, 2003
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-40409
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBEN GAMEZ-TOVAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-1190-ALL
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Ruben Gamez-Tovar (Gamez) appeals his guilty-plea conviction
and sentence for illegal reentry of a deported alien. Gamez
argues for the first time on appeal that the magistrate judge
lacked jurisdiction or authority to conduct his guilty-plea
hearing because there was no order of referral from the district
court. By failing to object in the district court to the
magistrate judge’s exercise of authority, Gamez waived his right
*
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that this opinion should not be published and is not precedent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. 02-40409
-2-
to challenge this procedural defect in his plea proceeding.
United States v. Bolivar-Munoz, 313 F.3d 253, 257 (5th Cir.
2002), cert. denied, 2003 WL 729161 (U.S. Mar. 31, 2003).
Also for the first time on appeal, Gamez argues that
8 U.S.C. § 1326(b)(2) is unconstitutional because it does not
require the prior aggravated felony conviction to be proven as an
element of the offense. Gamez 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), cert. denied, 531
U.S. 1202 (2001). Therefore, Gamez’s argument is foreclosed.
Finally, Gamez contends that the district court erred by
sentencing him under the prior aggravated felony provisions in
8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2(b)(1)(C) based on his
state conviction for possession of cocaine. These issues also
are foreclosed. See United States v. Caicedo-Cuero, 312 F.3d 697(5th Cir. 2002), petition for cert. filed, (U.S. Mar. 19, 2003)
(No. 02-9747).
AFFIRMED.