IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40512
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO ORLANDO LANZA-CHAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-01-CR-562-1
--------------------
February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ernesto Orlando Lanza-Chan appeals the 60-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.
Lanza-Chan 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
referred the case to the magistrate judge. In United States
*
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that this opinion should not be published and is not precedent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. 02-40512
-2-
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, Lanza-Chan
consented to proceedings before the magistrate judge and lodged
no objection to the absence of a referral order. Lanza-Chan
waived the procedural error.
Lanza-Chan 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
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.