IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40512 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERNESTO ORLANDO LANZA-CHAN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-562-1 -------------------- February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Ernesto Orlando Lanza-Chan appeals the 60-month sentence

imposed following his plea of guilty to a charge of being

found in the United States after deportation, a violation of

.

Lanza-Chan 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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40512 -2-

v. 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, Lanza-Chan

consented to proceedings before the magistrate judge and lodged

no objection to the absence of a referral order. Lanza-Chan

waived the procedural error.

Lanza-Chan 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.