                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT



                                 No. 02-40167
                               Summary Calendar



      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

              versus


      SAUL ROSAS-RESENDIZ,
      also known as Pascual Resendiz Rosas,

                                                  Defendant-Appellant.




          Appeal from the United States District Court for the
                       Southern District of Texas
                         USDC No. B-01-CR-417-1

                               January 28, 2003


Before GARWOOD, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

      Saul Rosas-Resendiz pleaded guilty to one count of illegally

reentering the United States following deportation.            He argues for

the   first    time    on   appeal   that   the   magistrate   judge   lacked

jurisdiction to entertain his guilty plea due to the district

court’s untimely filing of its order of referral pursuant to 28


      *
      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opinion should not be published and is not precedent except under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.
U.S.C. § 636.1   He also argues that the sentencing provisions of 8

U.S.C. § 1326(b) are unconstitutional in light of the Supreme

Court’s holding in Apprendi v. New Jersey, 530 U.S. 466 (2000).

Rosas-Resendiz   acknowledges   that   his   Apprendi   argument   is

foreclosed by the Supreme Court’s decision in Almendarez-Torres v.

United States, 523 U.S. 224 (1998), see also United States v.

Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 531 U.S.

1202 (2001), but he seeks to preserve the issue for further Supreme

Court review.

     The district court’s untimely filing of its order of referral

was a procedural defect that Rosas-Resendiz waived when he failed

to object to the magistrate judge’s actions.   See United States v.

Bolivar-Munoz, ___ F.3d ___ (5th Cir. Nov. 20, 2002), 2002 WL

31599025 at *3. Accordingly, the judgment of the district court is

AFFIRMED.




     1
      After the magistrate judge’s report was filed recommending
acceptance of the plea, the district court, prior to sentencing,
signed its order adopting the report and accepting the plea.

                                 2
