United States v. Rodriguez

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 24, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41019
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMAS RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-156-ALL
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Tomas Rodriguez 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), cert. denied, 2003 WL 729161 (U.S.

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No. 02-41019
-2-
Mar. 31, 2003). By failing to object in the district court to
the magistrate judge’s exercise of authority, Rodriguez 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. Rodriguez 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,
Rodriguez’s argument is foreclosed.
AFFIRMED.

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