IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40313
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO LOPEZ-SALAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-821-ALL
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Arturo Lopez-Salas appeals the 72-month sentence imposed
following his plea of guilty to a charge of being found in the
United States after deportation, a violation of 8 U.S.C. § 1326.
Lopez-Salas argues for the first time on appeal that the
magistrate judge did not have the jurisdiction or authority to
accept his guilty plea because the district court had not
*
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that this opinion should not be published and is not precedent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. 02-40313
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referred the case to the magistrate judge. In United States
v. Bolivar-Munoz, 313 F.3d 253, 256-57 (5th Cir. 2002), this
court concluded that the district court must enter a proper
referral order, but found that a failure to do so causes a
procedural error, which can be waived, rather than a
jurisdictional defect. As in Bolivar-Munoz, Lopez-Salas
consented to proceedings before the magistrate judge and lodged
no objection to the absence of a referral order. Lopez-Salas
waived the procedural error.
Lopez-Salas contends that his indictment violated the Fifth
and Sixth Amendments because it lacked an allegation that he
acted with general intent. He acknowledges that his argument is
foreclosed by this court’s precedent in United States v. Guzman-
Ocampo, 236 F.3d 233, 236 (5th Cir. 2000), cert. denied, 533 U.S.
953 (2001), and United States v. Berrios-Centeno, 250 F.3d 294,
299-300 (5th Cir. 2001), cert. denied, 122 S. Ct. 288 (2001), but
raises it to preserve the issue for review by the Supreme Court.
Lopez-Salas argues that the felony conviction that resulted
in his increased sentence under 8 U.S.C. § 1326(b)(2) was an
element of the offense that should have been charged in the
indictment. He acknowledges that his argument is foreclosed by
the Supreme Court’s decision in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he seeks to preserve the issue
for Supreme Court review in light of the decision in Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000). Apprendi did not
No. 02-40313
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overrule Almendarez-Torres. Apprendi, 530 U.S. at 489-90, 496;
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000),
cert. denied, 531 U.S. 1202 (2001).
The judgment of the district court is AFFIRMED.