United States v. Sanchez-Gonzalez ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40430
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
POLICARPIO SANCHEZ-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-1075-ALL
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Policarpio Sanchez-Gonzalez appeals from his conviction of
illegal reentry following deportation. He contends that the
magistrate judge was without jurisdiction or authority to conduct
his rearraignment hearing because the district court did not
formally refer the case to the magistrate judge, that commission
of an aggravated felony is an element of illegal reentry
following deportation after commission of an aggravated felony
pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), that
*
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that this opinion should not be published and is not precedent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. 02-40430
-2-
8 U.S.C. § 1326(b)(2) is unconstitutional on its face pursuant
to Apprendi, and that his previous conviction of transporting
illegal aliens was not an offense of alien-smuggling for profit
and therefore was not subject to the 16-level adjustment provided
by U.S.S.G. §2L1.2(b)(1)(A)(vii).
Sanchez 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).
Sanchez’s contentions regarding Apprendi are foreclosed by
the caselaw of this court. United States v. Solis-Campozano,
312 F.3d 164, 168 (5th Cir. 2002). Sanchez raises those issues
to preserve them for review by the Supreme Court.
Finally, transporting aliens for profit is subject to the
16-level adjustment in U.S.S.G. §2L1.2(b)(1)(A)(vii). Id.
at 167. Sanchez’s contention to the contrary is unavailing.
AFFIRMED.