United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 23, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40222
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS SERRANO-SANTIAGO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-508-1
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Jose Luis Serrano-Santiago appeals his guilty-plea
conviction and sentence for being an alien unlawfully found in
the United States after deportation, in violation of 8 U.S.C.
§ 1326(a).
Serrano argues that his conviction and sentence are invalid
because the FED. R. CRIM. P. 11 guilty plea colloquy was delegated
to the magistrate judge. Serrano concedes that this argument is
*
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that this opinion should not be published and is not precedent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. 03-40222
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foreclosed by circuit precedent, but raises it to preserve the
issue for further review. We held in United States v. Dees, 125
F.3d 261, 266-69 (5th Cir. 1997), that 28 U.S.C. § 636(b)(3)
provides a magistrate judge with the statutory authority to
conduct a FED. R. CRIM. P. 11 guilty plea proceeding and that this
delegation of authority does not violate the Constitution.
Therefore, Serrano’s argument is foreclosed.
Serrano also argues that his state conviction for aggravated
assault, for which he received an imprisonment term of one year,
was a misdemeanor that does not qualify as an aggravated felony
under 8 U.S.C. § 1101(a)(43)(F) and therefore the district court
erred when it increased his base offense level by eight levels
pursuant to U.S.S.G. § 2L1.2(b)(1)(C). He concedes that this
argument is also foreclosed, but raises it to preserve it for
further review.
We held in United States v. Urias-Escobar, 281 F.3d 165,
167-68 (5th Cir. 2002), cert. denied, 536 U.S. 913 (2003), that a
crime deemed a misdemeanor under state law could fall within the
definition of 8 U.S.C. § 1101(a)(43)(F) as a crime of violence
punishable by at least one year of imprisonment and could thus be
considered an aggravated felony under U.S.S.G. § 2L1.2. The
court in Urias-Escobar analyzed a pre-2001 version of the
Guidelines. Although the 2001 Guidelines were amended to include
a definition of a misdemeanor, and that definition is included in
U.S.S.G. § § 2L1.2, comment. (n.3(A)), there was no change in the
No. 03-40222
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Sentencing Guidelines as to what constitutes an aggravated felony
under U.S.S.G. § 2L1.2. See United States v. Posadas-Mendez,
No. 02-41542, 1-2 (5th Cir. May 13, 2003)(unpublished).
Therefore, the reasoning of Urias-Escobar forecloses Serrano’s
argument, and his state conviction for aggravated assault for
which he was sentenced to one year of imprisonment is an
aggravated felony under the 2002 version of the Guidelines. See
Posadas-Mendez, No. 02-41542, 1-2; Urias-Escobar, 281 F.3d at
167-68.
AFFIRMED.