IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41445 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN CARLOS RIVERA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-01-CR-401-ALL -------------------- February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Juan Carlos Rivera appeals the 78-month sentence imposed

following his plea of guilty to a charge of being found in the

United States after deportation, a violation of

.

Rivera 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. Bolivar-Munoz,

(5th Cir. 2002), this

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41445 -2-

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, Rivera consented to

proceedings before the magistrate judge and lodged no objection

to the absence of a referral order. Rivera waived the procedural

error.

Rivera 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).

The judgment of the district court is AFFIRMED.