IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-50956

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JANET DEES,

Defendant-Appellant.

 

Appeal from the United States District Court

For the Western District of Texas

 

October 1, 1997

Before KING, HIGGINBOTHAM, and DUHÉ, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Janet Dees pled guilty to a bank fraud charge and now appeals

her sentence. By our own motion, we raise but ultimately reject a

jurisdictional challenge to Dees’s conviction based on the fact

that a magistrate judge conducted her plea proceeding. We dismiss

Dees’s appeal on the issue that she does press, a miscalculation of

her sentence, because Dees in her plea agreement waived her right

to an appeal.

I.

Dees participated in a scheme to fraudulently obtain bank

loans for the financing of mobile-home sales. The government filed

a single count information against Dees, charging her with

conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1344.
2

Dees decided to plead guilty. She entered into a plea

agreement on August 19, 1994, in which she agreed to waive her

right to appeal whatever sentence the district court imposed on

her. She also consented to have a magistrate judge take her plea.

On August 22, 1994, a federal magistrate judge conducted a plea

proceeding pursuant to Rule 11 of the Federal Rules of Criminal

Procedure. The magistrate judge performed the standard allocution,

probing Dees to ascertain whether her plea was knowing and

voluntary. Dees confirmed to the magistrate judge that she

understood the plea agreement and appreciated its consequences,

particularly the waiver of appeal. Satisfied with Dees’s responses,

the magistrate judge recommended to the district court that it

accept her plea. After doing so, the district court sentenced Dees

to fifteen months in prison.

Dees then brought this appeal, arguing that the district court

erred in sentencing her on the basis of the entire loss

attributable to the four-year-long conspiracy. She contends instead

that she should be sentenced only for the losses that accrued

during the eighteen-month period in which she actively participated

in the scheme.

II.

Dees does not challenge the magistrate judge’s authority to

conduct her plea allocution. Because our court has the independent

duty to determine whether jurisdiction lies in a case, however, we

may consider jurisdictional issues by our own motion. See United

States v. Mendoza, 491 F.2d 534, 536 (5th Cir. 1974). If the
 

1In addition, one district court has published a lengthy

opinion on the subject. See United States v. Khan, 774 F. Supp. 748

(E.D.N.Y. 1991). Furthermore, our own circuit has ruled on a

similar procedure. See United States v. Rojas, 898 F.2d 40 (5th

Cir. 1990) (permitting magistrate judges to hold evidentiary

hearings regarding the voluntariness of a defendant’s plea).

3

magistrate judge did not have the authority to entertain Dees’s

plea, then neither her plea, her waiver of appeal, nor her sentence

are valid.

Case law on the issue of magistrate judges’ taking of guilty

pleas is not well-developed. Only the Second, see United States v.

Williams, 23 F.3d 629 (2d Cir.), cert. denied, 513 U.S. 1045, 115

S. Ct. 641, 130 L. Ed. 2d 547 (1994), and Tenth Circuits, see

United States v. Ciapponi, 77 F.3d 1247 (10th Cir.), cert. denied,

— U.S. —, 116 S. Ct. 1839, 134 L. Ed. 2d 942 (1996), have addressed

the problem directly.1 Yet judges have long expressed reservations

about the practice. In 1991, the Judicial Conference’s Committee on

the Administration of the Magistrate Judges System rejected a

proposal to endorse magistrate judges’ taking of guilty pleas:

The Committee expressed a strong view that judicial duties in

critical stages of a felony trial, particularly the acceptance

of guilty pleas and conducting sentencing proceedings, as well

as presiding over the felony trial itself, are fundamental

elements of the authority of district judges under Article III

of the Constitution. These duties thus should not be delegated

to magistrate judges as a matter of policy, regardless of

whether the parties consent to the delegation.

Magistrate Judges Division of the Administrative Office of the

United States Courts, A Constitutional Analysis of Magistrate Judge

Authority, 150 F.R.D. 247, 306 (1993). The Judicial Conference took

the same position in a 1981 report to Congress, reasoning that “it

is preferable for the judge who is later to pronounce judgment and
4

determine the sentence to conduct the [plea] proceeding.” Judicial

Conference of the United States, The Federal Magistrate System:

Report to the Congress by the Judicial Conference of the United

States 52 (1981). The prevalence of this practice in our circuit

and the serious constitutional questions that it raises warrants a

discussion of its propriety from our court.

Determining whether a judicial duty is properly delegable to

a magistrate requires a two-step analysis. First, we must ask

whether Congress, in passing legislation governing magistrate

judges, intended for them to perform the duty in question. Second,

we must consider whether the delegation of the duty to a magistrate

judge offends the principles of Article III of the Constitution. We

turn first to the statutory question.

A.

The statutory authority of a magistrate judge is set out in 28

U.S.C. § 636 (The Magistrates Act). Among other things, the Act

provides:

(b)(1) Notwithstanding any provision of law to the contrary —

(A) a judge may designate a magistrate to hear and

determine any pretrial matter pending before the court,

except a motion . . . to dismiss or quash an indictment

or information made by the defendant, [or] to suppress

evidence in a criminal case . . . . A judge of the court

may reconsider any pretrial matter under this

subparagraph (A) where it has been shown that the

magistrate’s order is clearly erroneous or contrary to

law.

(B) a judge may also designate a magistrate to conduct

hearings, including evidentiary hearings, and to submit

to a judge of the court proposed findings of fact and

recommendations for the disposition, by a judge of the

court, of any motion excepted in subparagraph (A). . . .
 

2Although, by virtue of § 636(b)(3), constitutional and

statutory inquiries into magisterial authority necessarily cover

much the same ground, we consider the two issues separately.

5

28 U.S.C. § 636(b)(1)(A)-(B). Apart from this express assignment of

duties, the Act further states that “[a] magistrate may be assigned

such additional duties as are not inconsistent with the

Constitution and laws of the United States.” 28 U.S.C. §

636(b)(3).2

The Supreme Court construed the statutory bases of magisterial

authority in criminal matters in two recent decisions, United

States v. Peretz, 501 U.S. 923, 111 S. Ct. 2661, 115 L. Ed. 2d 808

(1991), and Gomez v. United States, 490 U.S. 898, 109 S. Ct. 2237,

104 L. Ed. 2d 923 (1989). In both cases, the Court considered

whether Congress intended for magistrate judges to have the power

to conduct voir dire. In Gomez, the Court held that the Magistrates

Act did not confer upon magistrate judges the unlimited authority

to oversee voir dire. Gomez, 490 U.S. at 873-76, 109 S. Ct. at

2247-48. Peretz, however, clarified and narrowed the Gomez holding

by reading the Magistrates Act to permit magistrate judges to

conduct voir dire with the parties’ consent. Peretz, 501 U.S. at

927-28, 111 S. Ct. at 2664.

Although Peretz and Gomez did not consider the statutory

authority of magistrate judges to take guilty pleas, the few lower

courts that have examined this issue have looked to these two cases

for guidance. Because the Magistrates Act does not expressly

authorize magistrate judges to conduct plea proceedings, see 28

U.S.C. § 636(b)(1)(A)-(B), these courts have focused on the
 

3An alternative statutory approach to the problem was

suggested, but not relied upon, by a district court in United

States v. Khan, 774 F. Supp. 748 (E.D.N.Y. 1991). Khan theorized

that the acceptance of a guilty plea may fit within § 636(b)(1)(A),

which permits magistrate judges to hear and dispose of certain

pretrial matters. To the Khan court, a guilty plea is “a shorthand

way of describing a motion by a defendant to be permitted to plead

guilty.” Id. at 752. Because § 636(b)(1)(A)’s list of motions upon

which magistrate judges may not rule does not include guilty pleas,

the Act must therefore permit magistrate judges to hear them. Id.

Nevertheless, Khan hesitated to place plea agreements under §

636(b)(1)(A), as it reasoned that a guilty plea is effectively a

dispositive motion, deserving of a higher level of scrutiny from

the district court than the “clearly erroneous” standard provided

for in the section. Id. Accordingly, the Khan court instead upheld

this delegation to magistrate judges under the “additional duties”

clause. We agree with this reasoning.

6

authority of magistrate judges to do so under the “additional

duties” clause of the Act, see 26 U.S.C. § 6363(b)(3) (“A

magistrate may be assigned such additional duties as are not

inconsistent with the Constitution and laws of the United

States.”).3 As the Supreme Court noted in Peretz, a magisterial

duty is a proper “additional duty” under the clause if it bears

some relationship to the duties that the Act expressly assigns to

magistrate judges. Peretz, 501 U.S. at 930-31, 111 S. Ct. at 2666;

see also Gomez, 490 U.S. at 864, 109 S. Ct. at 2241.

Using the Peretz “additional duties” test, other courts have

found that plea allocutions do not differ markedly from other

duties performed by magistrate judges and hence are assignable to

them under the Act. In United States v. Williams, the Second

Circuit reasoned that 

[a]n allocution is an ordinary garden variety type of

ministerial function that magistrate judges commonly perform

on a regular basis. The catechism administered to a defendant

is now a standard one, dictated in large measure by the

comprehensive provisions of Rule 11 . . . . Further,
7

administering an allocution is less complex than a number of

duties the Magistrates Act specifically authorizes magistrates

to perform.

Williams, 23 F.3d at 632. Even if the taking of guilty pleas goes

beyond the typical range of duties assigned to magistrate judges by

the Act, the Williams court held that a defendant’s consent to the

magistrate judge’s actions makes the delegation permissible. Id. at

633. Finally, the court found nothing in the legislative history of

the Magistrates Act to indicate that Congress did not wish

magistrate judges to conduct plea proceedings; rather, this

delegation advanced the congressional goal of relieving the heavy

caseload pressures on district courts. See id. at 633, 634. Relying

upon similar reasoning, the Tenth Circuit has also found statutory

authority for magistrate judges to conduct plea proceedings. See

Ciapponi, 77 F.3d 1247.

Our circuit has not previously addressed the precise issue of

a magistrate judge’s statutory power to take a guilty plea. In

United States v. Rojas, 898 F.2d 40 (5th Cir. 1990), however, we

considered a closely analogous situation. On the morning of his

trial, Rojas pled guilty to the district court on a drug charge.

Later, however, at his sentencing, Rojas asked to withdraw his

guilty plea, claiming that his attorney was not assisting him in

his defense. The district court doubted this allegation, but

nevertheless referred the matter to a magistrate judge to hold a

hearing to gather evidence about whether his plea had been knowing

and voluntary. Id. at 41. On appeal, Rojas challenged this referral

under the Magistrates Act.
8

We found the hearing to be a pretrial duty that magistrate

judges were expressly authorized to conduct under § 636(b)(1). Id.

at 42. We reasoned that, even if Congress did not anticipate this

particular type of delegation, in the end the magistrate judge was

only making a recommendation to the district court concerning the

plea. Because the district court retained full authority to review

and reject the magistrate judge’s recommendation, the delegation

did not exceed the scope of magisterial authority contemplated by

the Act. Id.

Because we believe plea allocutions differ fundamentally from

the various matters expressly assigned to magistrate judges by §

636(b)(1), we follow the other courts that have taken up the issue

and analyze them instead under the “additional duties” clause of §

636(b)(3). Even though Rojas only concerned § 636(b)(1), its

reasoning still instructs our analysis in this case. As the Supreme

Court noted in Peretz, an additional magisterial duty is proper

under § 636(b)(3) if it bears some relationship to a duty that the

Magistrates Act expressly assigns to magistrate judges. Peretz, 501

U.S. at 930-31, 111 S. Ct. at 2666. In Rojas, we found that

evidentiary proceedings to determine the voluntariness of a plea

fall within the Act’s explicit assignment of duties. Thus, if a

plea allocution is substantially similar to the Rojas procedure, it

is a permissible additional duty for magistrate judges under §

636(b)(3) and Peretz.

We find that plea proceedings bear a close relationship to the

evidentiary hearing we considered in Rojas. First, district courts
9

have the same authority to review a magistrate judge’s performance

of both tasks. A district court has the power to review de novo a

magistrate’s taking of a guilty plea, and it can reject the plea if

it finds a problem in the allocution. Likewise, in upholding the

delegation in Rojas, we stressed the importance of a district

court’s unfettered authority to review a magistrate judge’s

recommendation regarding the voluntariness of a plea. Rojas, 898

F.2d at 42. Second, the procedure that we found delegable to

magistrate judges in Rojas scarcely differs from the plea

proceeding before us today. In both cases, the magistrate judge’s

task is essentially the same: to determine whether a plea had been

entered knowingly and voluntarily. In fact, if anything, the

delegation of power to a magistrate judge in Rojas was more

substantial than the delegation here. In Rojas, a magistrate judge

was asked to obtain evidence to resolve a dispute over a plea.

Here, the magistrate judge performed much more of a ministerial

function, as this plea proceeding, like most others, was

uncontested. 

Indeed, because of the similarity between the Rojas procedure

and plea proceedings, a district court in another circuit relied

extensively upon Rojas in reaching its conclusion that the taking

of a guilty plea is a permissible “additional duty” for a

magistrate judge under § 636(b)(3). See United States v. Khan, 774

F. Supp. 748, 752-53 (E.D.N.Y. 1991). We agree and find that the

magistrate judge had the statutory authority to take Dees’s plea.

B.
10

Having concluded that the taking of a plea is a proper

“additional duty” for magistrate judges under the Magistrates Act,

we must next determine whether the practice comports with Article

III of the Constitution.

The Supreme Court in Peretz laid out the constitutional

analysis for considering the Article III constraints on magisterial

authority. According to Peretz, the protections of Article III fall

into two categories. First, Article III confers upon defendants a

personal right to have their case heard by an Article III judge.

Like most other personal rights of criminal defendants, this right

is subject to waiver. See Peretz, 501 U.S. at 936-37, 111 S. Ct. at

2669. On the other hand, Article III also contains certain

structural guarantees which ensure respect for separation-of-powers

principles. See id.; see also Commodity Futures Trading Comm’n v.

Schor, 478 U.S. 833, 848, 106 S. Ct. 3245, 3255, 92 L. Ed. 2d 675

(1986) (“Article III, § 1, serves . . . to protect ‘the role of the

independent judiciary within the constitutional scheme of

tripartite government,’ . . . .”) (quoting Thomas v. Union Carbide

Agric. Prods., Co., 473 U.S. 568, 583, 105 S. Ct. 3325, 3334, 87 L.

Ed. 2d 409 (1985)). The Peretz Court implied that Article III’s

structural protections may not be waived. See Peretz, 501 U.S. at

937, 111 S. Ct. at 2669; see also Schor, 478 U.S. at 850-51, 106 S.

Ct. at 3256-57 (“To the extent that [the] structural principle is

implicated in a given case, the parties cannot by consent cure the

constitutional difficulty for the same reason that the parties by
 

4Our decision is grounded in constitutional analysis.

Nevertheless, we are mindful of the important policy considerations

surrounding this question. According to the Khan court, in the

Eastern District of New York, plea proceedings take between twenty

and forty-five minutes per defendant. Khan, 774 F. Supp. at 749.

Delegating plea proceedings to magistrate judges can thus save

district courts countless hours, which they might then apply to

more weighty Article III matters.

11

consent cannot confer on federal courts subject-matter jurisdiction

beyond the limitations imposed by Article III, § 2.”).

Because Dees consented to the use of a magistrate judge in her

case, thereby waiving any personal right she may have had to have

her guilty plea taken by an Article III judge, we must determine

only whether the delegation here offended the structural principles

of Article III, which are not subject to waiver. Although we have

concerns about the performance of such an important duty by nonArticle III judges, our reading of the Supreme Court’s

interpretation of the structural guarantees of Article III leads us

to conclude that no such guarantees are implicated here.4

The precise contours of Article III are not sharply defined.

See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458

U.S. 50, 91, 102 S. Ct. 2858, 2882, 73 L. Ed. 2d 598 (1982)

(Rehnquist, J., concurring) (indicating that one might view the

Court’s Article III jurisprudence as “but landmarks on a judicial

‘darkling plain’ where ignorant armies have clashed by night”). One

principle, however, has guided much of our previous Article III

analysis: We doubt that Article III will permit a non-Article III

judge to preside over a felony trial. See United States v. Ford,

824 F.2d 1430, 1435 (5th Cir. 1987) (en banc), cert. denied, 484
 

5Congress avoided this problem in enacting the Magistrates Act

by withholding from magistrate judges the authority to preside over

felony trials. See Gomez, 490 U.S. at 872, 109 S. Ct. at 2246

(analyzing Magistrates Act and concluding that “[t]he carefully

defined grant of authority [to magistrates] to conduct trials of

civil matters and of minor criminal cases should be construed as an

implicit withholding of the authority to preside at a felony

trial”).

 

6The “slippery slope” scenario here is easy to envision.

District courts might begin by delegating small felony trials to

magistrate judges. Meeting with some initial success, the pressure

of their crushing caseloads would weaken their resolve and cause

district courts to delegate even more felony trials to magistrate

judges. Eventually, Congress would notice the trend. When asked to

authorize new judgeships, or simply confirm new candidates to fill

vacant ones, Congress would instead seek to increase the number of

12

U.S. 1034, 108 S. Ct. 741, 98 L. Ed. 2d 776 (1988); cf. In re Clay,

35 F.3d 190, 193 (5th Cir. 1994) (discussing importance of jury

trials to Article III power).5 Felony trials are complex affairs,

requiring close oversight of delicate constitutional rights.

Although a district court’s ability to review a magistrate judge’s

actions saves many delegations from Article III problems, a

district court cannot adequately review an entire felony trial. See

Clay, 35 F.3d at 193-94. Even if such oversight were possible,

double jeopardy principles might prevent retrials to correct

magisterial mistakes in favor of defendants. Furthermore, in felony

trials the federal government seeks to vindicate important national

policies on a public stage. Irreparable harm would be done to the

authority of the federal judiciary were such fundamental

proceedings delegated to non-Article III tribunals. By giving away

their critical criminal jurisdiction, federal judges would risk

devitalizing their own coordinate branch of government, thereby

upsetting our constitutional balance of power.6 Thus, our
magistrate judges. With their lower salaries, magistrate judges

would be more cost-effective than Article III judges, and, lacking

life tenure, more politically servient as well. As the number of

magistrate judges grew and the ranks of Article III judges thinned,

district judges would become nothing more than judicial

administrators, overseeing an army of magistrate judges. Our

tripartite scheme of government would suffer. See Patrick E.

Higginbotham, Bureaucracy—The Carcinoma of the Federal Judiciary,

31 Ala. L. Rev. 261, 265-66 (1980).

13

constitutional concerns about magisterial authority will grow as

magistrate judges move closer to presiding over trials.

As an initial matter, therefore, we should consider the extent

to which the delegation of a plea allocution to a magistrate judge

encroaches upon a district court’s exclusive felony trial domain.

In this regard, voir dire is a helpful analytic tool. We have

previously recognized that voir dire is an “integral component” of

a criminal trial. Ford, 824 F.2d at 1438. The Supreme Court has

agreed, labeling voir dire a “critical stage of the criminal

proceeding.” Gomez, 490 U.S. at 873, 109 S. Ct. at 2237; see also

Swain v. Alabama, 380 U.S. 202, 218, 85 S. Ct. 824, 835, 13 L. Ed.

2d 759 (1965) (implying voir dire is a “necessary part of trial by

jury”), overruled by Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.

1712, 96 L. Ed. 2d 69 (1986). Yet, important as voir dire is to a

criminal trial, the Supreme Court has held that the consensual

delegation of it to a magistrate judge does not implicate the

structural guarantees of Article III. See Peretz, 501 U.S. at 937,

111 S. Ct. at 2669. Because a district court retains the ultimate

decision about whether to empanel the jury selected under the

magistrate judge’s supervision, the Supreme Court has reasoned that

the assignment of voir dire to magistrate judges does not undermine
14

the fundamental authority of Article III judges. See id. 501 U.S.

at 937, 111 S. Ct. at 2669-70.

Measured against the benchmark of voir dire, the taking of a

guilty plea by a magistrate judge does not threaten the exclusive

Article III power of a district court to preside over a felony

trial. Plea proceedings are far more ministerial in nature than is

voir dire. When defendants plead guilty, they are led through a

series of standardized questions, most of which are dictated by

Rule 11 of the Federal Rules of Criminal Procedure. Typically, the

prosecution will not contest a plea allocution. Voir dire, on the

other hand, is a delicate process whose outcome can be critical to

the eventual trial. Voir dire influences the makeup of the jury

that will ultimately decide the case, and during voir dire jurors

get their first impression of the issues and parties that will be

involved in the trial. Although a successfully completed plea

proceedings may preclude an Article III court from holding a felony

trial, it is not an essential component of the actual trial itself,

like voir dire. If magistrate judges can oversee voir dire without

interfering with the exclusive trial domain of Article III judges,

so too must they be able to conduct plea proceedings.

Although we are satisfied that the assignment of plea

proceedings to magistrate judges does not encroach upon the trial

jurisdiction of Article III judges, there are other ways that

magisterial power can violate the structural guarantees of Article

III. Most notably, Article III judges cannot delegate to magistrate

judges final authority over some important issue in a case, as only
15

Article III judges, not their adjuncts, have the power to dispose

of cases or controversies. For this reason, the Supreme Court has

stressed that the reviewability of a magistrate judge’s actions is

a critical factor in considering the propriety of an Article III

judge’s delegation of authority to a magistrate judge. See Peretz,

501 U.S. at 937-39; 111 S. Ct. at 2669-71. Even if a

“‘controversial matter might be delegated to a magistrate,’” so

long as the district court has the power to review the magistrate

judge’s actions, there is no “‘threat to the judicial power or the

independence of judicial decisionmaking that underlies Article

III.’” Peretz, 501 U.S. at 938, 111 S. Ct. at 2670 (quoting United

States v. Raddatz, 447 U.S. 667, 685-86, 100 S. Ct. 2406, 2417-18,

65 L. Ed. 2d 424 (1980) (Blackmun, J., concurring)). Only when a

magistrate judge possesses final decisionmaking authority over a

substantial issue in a case does an Article III problem arise. See

Raddatz, 447 U.S. at 683, 100 S. Ct. at 2416.

We find that plea proceedings conducted by magistrate judges

are sufficiently reviewable so as not to threaten Article III’s

structural guarantees. The taking of a plea by a magistrate judge

does not bind the district court to accept that plea. Rather, the

district court retains ultimate control over the plea proceedings,

which are submitted to the court for its approval. Williams, 23

F.3d at 634. Moreover, district courts review plea proceedings on

a de novo basis, contributing to the ministerial nature of the
 

7Even though the Magistrates Act does not expressly provide

for de novo review of plea proceedings, the only constitutional

requirement is that it be available if the parties so request. See

Ciapponi, 77 F.3d at 1251 (citing Peretz, 501 U.S. at 939, 111 S.

Ct. at 2670).

16

magistrate’s task.7 See In re Texas Gen. Petroleum Corp., 52 F.3d

1330, 1337 (5th Cir. 1995) (“De novo review over an adjunct’s

ruling is crucial to maintaining Article III control over an

adjunct.”). 

Again, voir dire is a useful standard against which to measure

the taking of a guilty plea. As our circuit has previously

suggested, de novo review of voir dire proceedings confers upon the

parties only an illusory protection, as a district court cannot

accurately assess the manner of a potential juror’s testimony on

the basis of a cold, written record. See Ford, 824 F.2d at 1437.

Moreover, it is doubtful whether a district court can effectively

repeat voir dire after the magistrate judge’s first, failed

attempt. See id. At one point, the Supreme Court seemed to agree

with our sentiments. See Gomez, 490 U.S. at 874, 109 S. Ct. at 2247

(“[W]e harbor serious doubts that a district judge could review

[voir dire] meaningfully.”). Yet in Peretz, the Court later held

that because a district court retains the ultimate decision over

whether to empanel a jury selected under a magistrate’s watch, voir

dire is sufficiently reviewable to allow it to be assigned to

magistrate judges without damage to Article III’s structural

guarantees. Peretz, 501 U.S. at 937, 111 S. Ct. at 2669-70.

If voir dire is a sufficiently reviewable procedure to permit

its delegation to a magistrate judge, so too must be a plea
17

proceeding. A district court’s review of voir dire is distant and

faceless and may require it to scrutinize the testimony of dozens

of potential jurors. Moreover, the reviewing court does not have

the realistic option of conducting a second voir dire on its own.

To review a plea allocution, on the other hand, a district court

need only look into the testimony of a single individual, asked a

series of standardized, non-confrontational questions. If the court

is troubled by some response given by the defendant, it can easily

perform another allocution of its own to clear up the problem. As

we noted in Rojas, “[a]n incorrect recommendation [following an

evidentiary hearing about the voluntariness of a plea], as opposed

to a poorly supervised voir dire, can easily be corrected by the

district judge’s rejecting the magistrate’s recommendation and even

holding a second evidentiary hearing if necessary.” Rojas, 898 F.2d

at 42. The same principle applies to plea proceedings themselves.

Accordingly, every court that has considered the issue has

concluded that plea proceedings conducted by magistrate judges do

not violate Article III’s structural guarantees because they are

fully reviewable by district courts. See Ciapponi, 77 F.3d at 1251;

Williams, 23 F.3d at 634; Khan, 774 F. Supp. at 754-55. We agree

with these courts. Although the taking of a plea can be a critical

function which in a perfect world might best be left to an Article

III judge, plea proceedings are no more crucial to the spirit of

Article III than is voir dire, which the Supreme Court has held may

be delegated to magistrate judges with the consent of the parties.
18

Therefore, the right to have an Article III judge preside over

a plea proceeding is personal, not structural. Should a defendant

waive that personal right, Article III permits delegation of plea

allocutions from the district court to a magistrate judge. Hence,

in taking a plea with the consent of the parties, a magistrate

judge cannot “emasculat[e] constitutional courts.” National Ins.

Co. v. Tidewater Co., 337 U.S. 582, 644, 69 S. Ct. 1173, 1209, 93

L. Ed. 1556 (1949).

III.

Having disposed of this jurisdictional matter, we now turn to

the issue that Dees herself raises on appeal. Dees challenges the

district court’s calculation of her sentence under the Sentencing

Guidelines. She contends that her sentence should be based on the

amount of loss that accrued during the period in which she was

actively involved with the conspiracy to defraud banks. The

district court, however, calculated her sentence based upon the

entire loss that accumulated during the life of the scheme.

As part of her plea agreement, Dees agreed not to appeal her

sentence on any grounds. Dees now argues that this waiver of her

right to an appeal was not informed and voluntary, as she had no

idea that the district court would hold her accountable for the

entire amount of loss. Dees was, however, informed of the maximum

term of imprisonment to which she could be sentenced, and her

actual sentence fell within that range. Accordingly, her plea was

informed and voluntary. United States v. Abreo, 30 F.3d 29, 32 (5th

Cir.), cert. denied, 513 U.S. 1064, 115 S. Ct. 681, 130 L. Ed. 2d
19

613 (1994); United States v. Santa Lucia, 991 F.2d 179, 180 (5th

Cir. 1993). So long as a plea is informed and voluntary, we will

enforce a waiver of appeal. United States v. Melancon, 972 F.2d 566

(5th Cir. 1992). Thus, we will not entertain Dees’s appeal.

IV.

For the foregoing reasons, we DISMISS this APPEAL.