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 -------------------- 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

.

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.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41043 -2-

Bolivar-Munoz,

(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

(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,

(1998), but he seeks to preserve the issue for Supreme Court

review in light of the decision in Apprendi v. New Jersey,

(2000). Apprendi did not overrule Almendarez-

Torres. Apprendi,

; United States v.

Dabeit,

(5th Cir. 2000), cert. denied,

(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,

(5th Cir. 2000), cert. denied,

(2001), and United States v. Berrios-Centeno,

(5th Cir. 2001), cert. denied,

(2001), but No. 01-41043 -3-

raises it to preserve the issue for review by the Supreme Court.

The judgment of the district court is AFFIRMED.