                  IN THE UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT



                                       No. 00-40741
                                     Summary Calendar



UNITED STATES OF AMERICA,
                                                            Plaintiff-Appellee,
                                             versus

GERBER FRANCISCO SURIANO-HERNANDEZ,

                                                            Defendant-Appellant.
                   _________________________________________

                     Appeal from the United States District Court
                          for the Southern District of Texas
                             USDC No. B-00-CR-103-1
                  __________________________________________
                                  February 23, 2001

Before POLITZ, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM:*
       Gerber Francisco Suriano-Hernandez appeals his conviction and sentence

from a guilty plea for illegal reentry following a prior deportation.1 Suriano

contends that the felony conviction that resulted in his increased sentence under 8

U.S.C. § 1326(b)(2) was an element of the offense that should have been charged in

       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
        8 U.S.C. § 1326.
the indictment. He acknowledges that his argument is foreclosed by Almendarez-
Torres v. United States,2 but he seeks to preserve the issue for Supreme Court

review in light of Apprendi v. New Jersey.3 Apprendi did not overrule Almendarez-

Torres and this argument, therefore, is foreclosed.4
      Suriano also maintains that the district court denied his right to allocution. 5

The Government acknowledges that the court failed in this regard and that the

sentence should be vacated and the case remanded to allow Suriano an opportunity

at resentencing to speak on his own behalf.6 Accordingly, Suriano’s sentence is
VACATED and the case is REMANDED for resentencing.




      2
       523 U.S. 224 (1998).
      3
          120 S. Ct. 2348 (2000).
      4
       Apprendi, 120 S. Ct. at 2361-62 & n.15; Almendarez-Torres, 523 U.S. at 235.
      5
       FED. R. CRIM. P. 32(c)(3)(C); United States v. Myers, 150 F.3d 459 (5th Cir. 1998).
      6
       United States v. Echegollen-Barrueta, 195 F.3d 786 (5th Cir. 1999).
