United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 24, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-40868
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANTONIO GABARETE-GUARDADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-42-1
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Jose Antonio Gabarete-Guardado 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 proved as an element of the offense.
Gabarete concedes that his argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). He nevertheless
*
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that this opinion should not be published and is not precedent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. 02-40868
-2-
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), cert. denied, 531 U.S. 1202 (2001).
Gabarete’s argument is foreclosed.
Gabarete 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, Gabarete 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), cert. denied, S. Ct. , 2003 WL 729161
(U.S. Mar. 31, 2003). The judgment of the district court is
AFFIRMED.
AFFIRMED.