IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40476 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIYELL MICHAEL SIMMONS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. G-01-CR-17-ALL -------------------- March 6, 2003

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Daniyell Michael Simmons pleaded guilty to one count of

possession with intent to distribute in excess of five grams of

cocaine base, and was sentenced as a career offender to 216 months’

imprisonment. He raises three issues for appeal.

Simmons first asserts that

is unconstitutional

in light of Apprendi v. New Jersey,

(2000). He

concedes that this argument is foreclosed by our decision in United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40476 -2-

States v. Slaughter,

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

(2001), but he raises it in order to preserve it for

further review. This issue is without merit.

Simmons next argues that the magistrate judge lacked

jurisdiction to conduct his guilty plea proceedings because no

order of referral was entered, and therefore his conviction and

sentence must be vacated. This issue is foreclosed by our recent

decision in United States v. Bolivar-Munoz, __ F.3d __ (5th Cir.

Nov. 20, 2002, Nos. 01-40967, 01-41466),

.

Although we concluded that the district court must enter a proper

referral order, we also concluded that the failure to do so was a

procedural error, which can be waived, rather than a jurisdictional

defect. See id. at *2-3. As Simmons consented to proceeding

before the magistrate judge and lodged no objection to the absence

of a referral order, he has waived the procedural error. See id.

Finally, Simmons argues that his prior Texas conviction for

unauthorized use of a motor vehicle (“UUMV”) was not a crime of

violence as defined in U.S.S.G. § 4B1.2, and therefore should not

have been used as a basis for his career-offender enhancement under

§ 4B1.1. In United States v. Charles,

(5th Cir.

2002)(en banc), this court held that a crime is a “crime of

violence” under § 4B1.2(a)(2) “only if, from the face of the

indictment, the crime charged or the conduct charged presents a

serious potential risk of injury to a person.” It is impossible to

review the prior indictment under this standard because that No. 02-40476 -3-

indictment is not found in the present record. Therefore, we

VACATE Simmons’ sentence and REMAND to the district court for

resentencing consistent with the decision in Charles. See United

States v. Lee,

(5th Cir. 2002).

SENTENCE VACATED; REMANDED.