* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

United States Court of Appeals

Fifth Circuit

FILED

April 28, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-40699

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

IRINEO LOPEZ-GUZMAN, also known as Jorge Guajardo-Herrera,

also known as Jorge Lopez-Guzman, also known as Hector

Lopez-Guzman, also known as Hector Montero-Hernandez,

Defendant-Appellant,

 

No. 02-40711

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

IRINEO LOPEZ-GUZMAN, also known as Jorge,

Defendant-Appellant.

--------------------

Appeals from the United States District Court

for the Southern District of Texas

USDC No. B-01-CR-43-1

USDC No. B-98-CR-563-2

--------------------

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*
No. 02-40699

c/w No. 02-40711

-2-

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Irineo Lopez-Guzman appeals from guilty-plea convictions

for illegal entry into the United States following deportation for

an aggravated felony and revocation of supervised release on a

sentence for transporting an illegal alien within the United

States. 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(A)(v)(II), 1326.

 Lopez-Guzman argues that the court erred in denying his

motion to grant a downward departure on the basis of a

significantly diminished mental capacity. Lopez-Guzman contends

that the court misunderstood its authority to consider whether he

suffered from a volitional impairment under U.S.S.G. § 5K2.13.

There is no indication in the record that the court did not

understand its authority to depart on these grounds. Accordingly,

this court lacks jurisdiction to review a refusal to grant a

downward departure. See United States v. Thames, 214 F.3d 608, 612

(5th Cir. 2000).

 Lopez-Guzman argues that the magistrate judge lacked the

jurisdiction to conduct his guilty-plea hearings. Lopez-Guzman

concedes that his argument is foreclosed by United States

v. Bolivar-Munoz, 313 F.3d 253 (5th Cir. 2002), but he seeks to

preserve the issue for Supreme Court review. The court held that

the error complained of was procedural, not jurisdictional, and

could be waived if not properly preserved. Bolivar-Munoz, 313 F.3d

at 256-57. Lopez-Guzman did not object to the magistrate judge’s
No. 02-40699

c/w No. 02-40711

-3-

actions below, therefore he has waived his right to raise the

referral issue in this court. See id at 257. Because BolivarMunoz is still good law and one panel of this court cannot overrule

another absent superceding Supreme Court or en banc authority,

Lopez-Guzman’s argument is foreclosed. See United States v. Ruff,

984 F.2d 635, 640 (5th Cir. 1993). 

 Lopez-Guzman also argues that for the first time on

appeal that 8 U.S.C. § 1326(b)(2) is unconstitutional because it

treats a prior conviction for an aggravated felony as a mere

sentencing factor and not an element of the offense. Lopez-Guzman

concedes that his argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998), but he seeks to preserve the

issue for Supreme Court review in light of the decision in Apprendi

v. New Jersey, 530 U.S. 466 (2000). Apprendi did not overrule

Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see also

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

Accordingly, this argument lacks merit. 

AFFIRMED.