United States v. Acosta-Olvera

* 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that this opinion should not be published and is not precedent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.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41467
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GENARO ACOSTA-OLVERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-400
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January 23, 2003
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Genaro Acosta-Olvera appeals from his guilty-plea conviction
for illegal reentry into the United States after deportation
subsequent to an aggravated-felony conviction. He first argues
that the lack of an order by the district court referring his
case to the magistrate judge to conduct his guilty plea hearing
constitutes a jurisdictional defect requiring vacatur of his

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guilty plea and conviction. Because Acosta-Olvera consented to
having the magistrate judge conduct his guilty plea hearing, any
defect in the referral procedure was waived. See United States
v. Bolivar-Munoz, 313 F.3d 253, 256-57 (5th Cir. 2002).
Accordingly, Acosta-Olvera may not challenge such error on
appeal.
Acosta-Olvera also contends that the aggravated felony
conviction that resulted in his increased sentence is an element
of the offense under 8 U.S.C. § 1326(b)(2) that should have been
alleged in his indictment, rather than a mere sentencing
enhancement. In Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998), the Supreme Court held that the enhanced
penalties in 8 U.S.C. § 1326(b) are sentencing provisions, not
elements of separate offenses. The Court further held that the
sentencing provisions do not violate the Due Process Clause. Id.
at 239-47. Acosta-Olvera acknowledges that his argument is
foreclosed by Almendarez-Torres, but asserts that the decision
has been case into doubt by Apprendi v. New Jersey, 530 U.S. 466,
490 (2000). He seeks to preserve his argument for further
review.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000). This court must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule

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it.” Dabeit, 231 F.3d at 984 (internal quotation marks and
citation omitted).
The judgment of the district court is AFFIRMED.

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