                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                         April 1, 2003

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                 No. 02-40968
                               Summary Calendar



                           UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                     versus

                       EDIL DONALDO MOLINA-GUERRA,

                                                       Defendant-Appellant.

                          --------------------
              Appeal from the United States District Court
                   for the Southern District of Texas
                        USDC No. L-02-CR-139-ALL
                          --------------------

Before JONES, DUHÉ, and CLEMENT, Circuit Judges.

PER CURIAM:1

      Edil Donaldo Molina-Guerra (Guerra) appeals his guilty-plea

conviction for illegal reentry after deportation.              He argues for

the   first    time   on    appeal   that   the   magistrate   judge    lacked

jurisdiction to conduct his guilty plea hearing because there was

no order of referral from the district court.                  He concedes,

however, that his argument is foreclosed by United States v.

Bolivar-Munoz, 313 F.3d 253, 257 (5th Cir. 2002).              By failing to

object in the district court to the magistrate judge’s exercise of

      1
        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that this opinion should not be published and is not precedent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.
authority, Molina waived his right to challenge this procedural

defect in his plea proceeding.     Id. at 257.

     He also argues for the first time on appeal that the “felony”

and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are

unconstitutional because the statute does not require the fact of

a prior felony or aggravated felony conviction to be charged in the

indictment and proved as an element of the offense.               Molina

concedes that his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224 (1998).         He nevertheless seeks to

preserve this 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).   Therefore, Molina’s argument is foreclosed.

     Molina seeks remand pursuant to FED. R. CRIM. P. 36 for

correction of a clerical error in the judgment.          The Government

concedes that remand is appropriate because the written judgment

does not reflect that at sentencing, the court granted its motion

to remit the $100 special assessment.      Accordingly, this case is

REMANDED for the sole purpose of allowing the district court to

correct the clerical error in the judgment.

     AFFIRMED,   REMANDED   FOR   CORRECTION    OF   CLERICAL   ERROR   IN

JUDGMENT.




                                   2
