IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40648
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE DURAN-RIVAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-1228-ALL
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Duran-Rivas (Duran) appeals his guilty-plea conviction
for illegal reentry after deportation. He argues for the first
time on appeal that 8 U.S.C. § 1326(b)(2) is unconstitutional
because it does not require the prior aggravated felony
conviction to be proven as an element of the offense. Duran
concedes that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998). He nevertheless seeks to
preserve this issue for Supreme Court review in light of 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that this opinion should not be published and is not precedent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. 02-40648
-2-
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; see also United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001).
Therefore, Duran’s argument is foreclosed.
Duran also contends for the first time on appeal that the
magistrate judge lacked jurisdiction to conduct his guilty plea
hearing because there was no order of referral from the district
court. By failing to object in the district court to the
magistrate judge’s exercise of authority, Duran waived his right
to challenge this procedural defect in his plea proceeding.
United States v. Bolivar-Munoz, 313 F.3d 253, 257 (5th Cir.
2002).
AFFIRMED.