United States v. Santos-Moreno

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-40267 Summary Calendar UNITED STATES OF AMERICA Plaintiff - Appellee v. JOSE ANTONIO SANTOS-MORENO Defendant - Appellant -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-01-CR-1073-ALL -------------------- January 27, 2003 Before KING, Chief Judge, and DeMOSS and BENAVIDES, Circuit Judges. PER CURIAM:* Jose Antonio Santos-Moreno (“Santos”) appeals his guilty- plea conviction and sentence for being an alien unlawfully found in the United States after deportation pursuant to 8 U.S.C. § 1326. He argues that the magistrate judge lacked jurisdiction to accept his guilty plea, that his indictment was defective under Apprendi v. New Jersey, 530 U.S. 466 (2000), and that his * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40267 -2- prior cocaine-possession conviction was not an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C)(2001). Santos consented to entry of his plea by a magistrate judge and did not object in the district court; he therefore waived any procedural error in that regard. See United States v. Bolivar- Munoz, 313 F.3d 253, 255 (5th Cir. 2002). Santos concedes that his Apprendi argument is foreclosed by United States v. Rodriguez-Montelongo, 263 F.3d 429, 434 (5th Cir. 2001), and states that he raises the issue only to preserve it for possible Supreme Court review. The issue is foreclosed. Santos’ challenge to the adjustment of his offense level under U.S.S.G. § 2L1.2(b)(1)(C)(2001) is without merit. See United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002). AFFIRMED.