               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-41467
                         Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

GENARO ACOSTA-OLVERA,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. L-01-CR-400
                      --------------------
                        January 23, 2003

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Genaro Acosta-Olvera appeals from his guilty-plea conviction

for illegal reentry into the United States after deportation

subsequent to an aggravated-felony conviction.    He first argues

that the lack of an order by the district court referring his

case to the magistrate judge to conduct his guilty plea hearing

constitutes a jurisdictional defect requiring vacatur of his


     *
        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that this opinion should not be published and is not precedent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.

                                -1-
                            No. 01-41467
                                 -2-

guilty plea and conviction.    Because Acosta-Olvera consented to

having the magistrate judge conduct his guilty plea hearing, any

defect in the referral procedure was waived.    See United States

v. Bolivar-Munoz, 313 F.3d 253, 256-57 (5th Cir. 2002).

Accordingly, Acosta-Olvera may not challenge such error on

appeal.

     Acosta-Olvera also contends that the aggravated felony

conviction that resulted in his increased sentence is an element

of the offense under 8 U.S.C. § 1326(b)(2) that should have been

alleged in his indictment, rather than a mere sentencing

enhancement.    In Almendarez-Torres v. United States, 523 U.S.

224, 235 (1998), the Supreme Court held that the enhanced

penalties in 8 U.S.C. § 1326(b) are sentencing provisions, not

elements of separate offenses.    The Court further held that the

sentencing provisions do not violate the Due Process Clause.      Id.

at 239-47.    Acosta-Olvera acknowledges that his argument is

foreclosed by Almendarez-Torres, but asserts that the decision

has been case into doubt by Apprendi v. New Jersey, 530 U.S. 466,

490 (2000).    He seeks to preserve his argument for further

review.

     Apprendi did not overrule Almendarez-Torres.    See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000).    This court must follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule




                                 -2-
                            No. 01-41467
                                 -3-

it.”    Dabeit, 231 F.3d at 984 (internal quotation marks and

citation omitted).

       The judgment of the district court is AFFIRMED.




                                 -3-
