IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41457
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEODEGARIO ORTIZ-ZACARIAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-681-ALL
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Leodegario Ortiz-Zacarias appeals his conviction and
sentence for illegal reentry into the United States following
deportation. Ortiz argues 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.
Ortiz did not object in the district court to the magistrate
judge’s exercise of authority. He waived his right to raise the
*
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that this opinion should not be published and is not precedent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. 01-41457
-2-
procedural defect in his guilty plea proceeding as a basis for
relief. United States v. Bolivar-Munoz, 313 F.3d 253, 257 (5th
Cir. 2002).
Ortiz also argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional
because they are treated as sentencing factors rather than as
elements of the offense.
Ortiz acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but
asserts that the decision has been cast into doubt by Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). He seeks to preserve his
argument for further review.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied 531 U.S. 1201 (2001). This court
must follow Almendarez-Torres “unless and until the Supreme Court
itself determines to overrule it.” Dabeit, 231 F.3d at 984
(internal quotation marks and citation omitted). The judgment of
the district court is AFFIRMED.