IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40167
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAUL ROSAS-RESENDIZ,
also known as Pascual Resendiz Rosas,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Texas
USDC No. B-01-CR-417-1
January 28, 2003
Before GARWOOD, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Saul Rosas-Resendiz pleaded guilty to one count of illegally
reentering the United States following deportation. He argues for
the first time on appeal that the magistrate judge lacked
jurisdiction to entertain his guilty plea due to the district
court’s untimely filing of its order of referral pursuant to 28
*
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opinion should not be published and is not precedent except under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.
U.S.C. § 636.1 He also argues that the sentencing provisions of 8
U.S.C. § 1326(b) are unconstitutional in light of the Supreme
Court’s holding in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Rosas-Resendiz acknowledges that his Apprendi argument is
foreclosed by the Supreme Court’s decision in Almendarez-Torres v.
United States, 523 U.S. 224 (1998), see also United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 531 U.S.
1202 (2001), but he seeks to preserve the issue for further Supreme
Court review.
The district court’s untimely filing of its order of referral
was a procedural defect that Rosas-Resendiz waived when he failed
to object to the magistrate judge’s actions. See United States v.
Bolivar-Munoz, ___ F.3d ___ (5th Cir. Nov. 20, 2002), 2002 WL
31599025 at *3. Accordingly, the judgment of the district court is
AFFIRMED.
1
After the magistrate judge’s report was filed recommending
acceptance of the plea, the district court, prior to sentencing,
signed its order adopting the report and accepting the plea.
2