United States v. Hernandez-Santiago

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41043
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE HERNANDEZ-SANTIAGO,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-318-1
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jorge Hernandez-Santiago (Hernandez) appeals his conviction
and the 46-month sentence imposed following his plea of guilty to
a charge of being found in the United States after deportation in
violation of 8 U.S.C. § 1326.
Hernandez argues for the first time on appeal that the
magistrate judge did not have the jurisdiction or authority to
accept his guilty plea because the district court had not
referred the case to the magistrate judge. In United States v.

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Bolivar-Munoz, 313 F.3d 253, 255 (5th Cir. 2002), this court
concluded that the district court must enter a proper referral
order, but found that a failure to do so causes a procedural
error, which can be waived, rather than a jurisdictional defect.
As in Bolivar-Munoz, Hernandez consented to proceedings before
the magistrate judge and lodged no objection to the absence of a
referral order. Hernandez waived the procedural error.
Hernandez argues that the felony conviction that resulted in
his increased sentence under 8 U.S.C. § 1326(b)(2) was an element
of the offense that should have been charged in the indictment.
He acknowledges that his argument is foreclosed by the Supreme
Court’s decision in Almendarez-Torres v. United States, 523 U.S.
224 (1998), but he seeks to preserve the issue for Supreme Court
review in light of the decision in Apprendi v. New Jersey,
530 U.S. 466, 490 (2000). Apprendi did not overrule Almendarez-
Torres. Apprendi, 530 U.S. at 489-90, 496; United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 531 U.S.
1202 (2001).
Hernandez contends that his indictment violated the Fifth
and Sixth Amendments because it lacked an allegation that he
acted with general intent. He acknowledges that his argument is
foreclosed by this court’s precedent in United States v. Guzman-
Ocampo, 236 F.3d 233, 236 (5th Cir. 2000), cert. denied, 533 U.S.
953 (2001), and United States v. Berrios-Centeno, 250 F.3d 294,
299-300 (5th Cir. 2001), cert. denied, 122 S. Ct. 288 (2001), but

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raises it to preserve the issue for review by the Supreme Court.
The judgment of the district court is AFFIRMED.

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