IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40395 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

REYMUNDO MEDELLIN TOVIAS, also known as Raymundo Tovias Medellin,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-512-ALL -------------------- February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Reymundo Medellin Tovias appeals from his conviction of

having been found in the United States after having been deported

and after having been convicted of a prior “aggravated felony,”

a violation of

.

For the first time on appeal, Tovias contends that the

magistrate judge was without jurisdiction or authority to conduct

his guilty-plea hearing because the district court did not

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40395 -2-

formally refer the case to the magistrate judge until after

Tovias had pleaded guilty. By failing to object in the district

court to the magistrate judge’s exercise of authority, Tovias

waived his right to challenge this procedural defect in his

plea proceeding. United States v. Bolivar-Munoz,

(5th Cir. 2002).

Tovias also contends that

(b)(2) is

unconstitutional on its face under Apprendi v. New Jersey,

(2000), in that the aggravated-felony element of the

offense need not be submitted to the factfinder for proof. As he

concedes, Tovias’ contention regarding Apprendi is foreclosed by

the caselaw of this court and by Apprendi itself. See United

States v. Dabeit,

(5th Cir. 2000) (noting that

the Supreme Court in Apprendi,

, expressly

declined to overrule the controlling Almendarez-Torres v. United

States,

(1998)). Tovias raises this issue to

preserve it for review by the Supreme Court.

AFFIRMED.