                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         January 9, 2004
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-50761
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

KEVIN ARTHUR HOOT,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                     USDC No. SA-02-CR-317-ALL
                        --------------------
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Kevin Hoot appeals his sentence for bank robbery in

violation of 18 U.S.C. § 2113(a).   We consider this appeal

despite Hoot’s waiver of his right to appeal in his plea bargain

agreement because during the Rule 11 hearing the district court

did not ask the defendant whether he understood his “waiver of

appeal and the consequences.”   See United States v. Robinson, 187

F.3d 516, 517-18 (5th Cir. 1999); see also FED. R. CRIM. P.

11(b)(1)(N).   Nor did the district court ask Hoot whether he read



     *
        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that this opinion should not be published and is not precedent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.
                           No. 03-50761
                                -2-

the plea agreement and understood it.     See United States v.

Portillo, 18 F.3d 290, 293 (5th Cir. 1994).

     Hoot first claims that his guilty plea is invalid because

the district court failed to comply with FED. R. CRIM. P. 11 by

not asking him whether he understood the nature of supervised

release and by not advising him that the district court

sentencing must consider the sentencing guidelines but may depart

from them in certain specified circumstances.    The guilty plea is

valid because Hoot failed to show a violation of his substantial

rights.   See United States v. Cuevas-Andrade, 232 F.3d 440, 444

(5th Cir. 2000); United States v. Vasquez-Bernal, 167 F.3d 169,

171 (5th Cir. 1999).

     For the first time on appeal, Hoot contends that his

sentence was unconstitutionally augumented when a sentencing

factor, threatening the death of a victim, was not alleged in his

indictment.   As Hoot correctly acknowledges, this argument, based

on Apprendi v. New Jersey, 530 U.S. 466 (2000), is foreclosed by

our decision in United States v. Moreno, 289 F.3d 371 (5th Cir.

2002).

     AFFIRMED.
