United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 1, 2003
Charles R. Fulbruge III
Clerk
No. 02-40968
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDIL DONALDO MOLINA-GUERRA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-139-ALL
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Before JONES, DUHÉ, and CLEMENT, Circuit Judges.
PER CURIAM:1
Edil Donaldo Molina-Guerra (Guerra) appeals his guilty-plea
conviction for illegal reentry after deportation. He argues 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. He concedes,
however, that his argument is foreclosed by United States v.
Bolivar-Munoz, 313 F.3d 253, 257 (5th Cir. 2002). By failing to
object in the district court to the magistrate judge’s exercise of
1
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that this opinion should not be published and is not precedent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.
authority, Molina waived his right to challenge this procedural
defect in his plea proceeding. Id. at 257.
He also argues for the first time on appeal that the “felony”
and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are
unconstitutional because the statute does not require the fact of
a prior felony or aggravated felony conviction to be charged in the
indictment and proved as an element of the offense. Molina
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
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). Therefore, Molina’s argument is foreclosed.
Molina seeks remand pursuant to FED. R. CRIM. P. 36 for
correction of a clerical error in the judgment. The Government
concedes that remand is appropriate because the written judgment
does not reflect that at sentencing, the court granted its motion
to remit the $100 special assessment. Accordingly, this case is
REMANDED for the sole purpose of allowing the district court to
correct the clerical error in the judgment.
AFFIRMED, REMANDED FOR CORRECTION OF CLERICAL ERROR IN
JUDGMENT.
2