IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41457 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEODEGARIO ORTIZ-ZACARIAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-01-CR-681-ALL -------------------- February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Leodegario Ortiz-Zacarias appeals his conviction and

sentence for illegal reentry into the United States following

deportation. Ortiz argues that the magistrate judge was without

jurisdiction or authority to conduct his rearraignment hearing

because the district court did not formally refer the case to the

magistrate judge.

Ortiz did not object in the district court to the magistrate

judge’s exercise of authority. He waived his right to raise the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41457 -2-

procedural defect in his guilty plea proceeding as a basis for

relief. United States v. Bolivar-Munoz,

(5th

Cir. 2002).

Ortiz also argues that the “felony” and “aggravated felony”

provisions of

(b)(1) and (2) are unconstitutional

because they are treated as sentencing factors rather than as

elements of the offense.

Ortiz acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States,

(1998), but

asserts that the decision has been cast into doubt by Apprendi v.

New Jersey,

(2000). He seeks to preserve his

argument for further review.

Apprendi did not overrule Almendarez-Torres. See Apprendi,

; United States v. Dabeit,

(5th Cir. 2000), cert. denied

(2001). This court

must follow Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.” Dabeit,

(internal quotation marks and citation omitted). The judgment of

the district court is AFFIRMED.