             IN THE UNITED STATES COURT OF APPEALS

                               FOR THE FIFTH CIRCUIT
                                           _______________

                                             m 00-40096
                                           _______________



                                   UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                                 VERSUS

                                      JESUS REYES-VALDIVIA,

                                                      Defendant-Appellant.


                                    _________________________

                             Appeal from the United States District Court
                                 for the Southern District of Texas
                                          (L-99-CR-697-1)
                                  _________________________
                                            April 4, 2001

Before REYNALDO G. GARZA,                             olation of 8 U.S.C. § 1326. He appeals his
  HIGGINBOTHAM, and SMITH,                            conviction and sentence, asserting the failure
  Circuit Judges.                                     to honor his right of allocution and the
                                                      government’s failure to allege in the indictment
JERRY E. SMITH, Circuit Judge:*                       every element of the crime of which he was
                                                      convicted.1 Finding no reversible error, we
   Jesus Reyes-Valdivia (“Reyes”) pleaded
guilty of illegal reentry after deportation in vi-
                                                          1
                                                           In his original brief, Reyes also contended that
                                                      his plea was not voluntary, relying on the absence
                                                      of any contrary evidence in the official record on
   *
     Pursuant to 5TH CIR. R. 47.5, the court has      appeal. After the government supplemented the
determined that this opinion should not be            record with a portion of the transcriptSSheretofore
published and is not precedent except under the       undiscoveredSSthat conclusively established the
limited circumstances set forth in 5TH CIR. R.        voluntary nature of the guilty plea, Reyes
47.5.4.                                                                                       (continued...)
affirm.                                                       224 (1998).3 Nonetheless, he argues that
                                                              Apprendi v. New Jersey, 530 U.S. 466 (2000),
                       I.                                     calls Almendarez-Torres sufficiently intodoubt
   After serving time in prison for the sale and              to allow us to revisit the issue. His argument
transportation of heroin, Reyes was deported                  lacks merit. In Apprendi, “the Supreme Court
to Mexico in 1998. On August 1, 1999,                         expressly declined to overrule Almendarez-
Border Patrol agents arrested him in Laredo,                  Torres.” United States v. Dabeit, 231 F.3d
Texas, and he was charged with illegal reentry                379, 984 (5th Cir. 2000), cert. denied, 121 S.
following removal.                                            Ct. 1214 (2001).

    The court entered judgment under § 1326-                                          III.
(b)(2), despite the indictment’s failure to allege               Reyes asserts that the failure to advise him
a prior conviction or to cite subsection (b)(2)               of his right of allocution rendered his sentence
of the statute.2 The court subsequently held a                fatally defective. Rule 32(c)(3)(C), FED. R.
sentencing hearing during which the court                     CRIM. P., requires a court to “address the de-
never informed Reyes of his right of                          fendant personally and determine whether the
allocution. Nonetheless, Reyes repeatedly,                    defendant wishes to make a statement and to
and sometimes without invitation, participated                present any information in mitigation of the
in the discussion between counsel and the                     sentence . . . .” We review de novo the
court.                                                        compliance with the Federal Rules of Criminal
                                                              Procedure. United States v. Echegollen-Bar-
                       II.                                    rueta, 195 F.3d 786, 789 (5th Cir. 1999).
    Reyes contends that the indictment failed to              Moreover, we do not subject the issue of al-
allege that he had committed an aggravated                    locution to the harmless or plain error analyses
felony as specified in § 1326(b)(2). He does                  of FED. R. CRIM. P. 52; instead, we must
not contest that his prior conviction satisfies               vacate any sentence imposed in violation of
the definition of “aggravated felony.”                        rule 32(c)(3)(C), irrespective of whether the
    Reyes acknowledges that he failed to raise                defendant raised the issue of allocution before
the issue before the district court; likewise, he             the sentencing court or whether the error was
admits that his argument is foreclosed by Al-                 harmless. Id.4
mendarez-Torres v. United States, 523 U.S.
                                                                 3
                                                                    Almendarez-Torres, 523 U.S. at 235, 247,
   1
    (...continued)                                            held that the “aggravated felony” provision of
abandoned that argument in his reply brief, so we             § 1326(b)(2) serves merely as a sentence
do not address it.                                            enhancement, not as an additional element to a
                                                              crime separate from simple reentry, and therefore
   2
     Section 1326(b)(2) specifies that, “in the case          that the existence of a prior conviction need not be
of any alien . . . whose removal was subsequent to            alleged in the underlying indictment.
a conviction for commission of an aggravated
                                                                 4
felony, such alien shall be fined . . ., imprisoned not            The government describes defense counsel’s
more than 20 years, or both . . . .” Subsection               silence in the face of the court’s alleged failure to
(b)(2) imposes a greater sentence than does                   comply with rule 32(c)(3)(C) as “disturbing.” To
§ 1326(a), which governs simple reentry after                 the extent that the government takes issue with
deportation.                                                                                         (continued...)

                                                          2
    We have recognized both the historical sig-            the hearing prove not only that he knew he had
nificance and the continuing importance of the             a right to speak on any subject, but that he in
right of allocution.5      Rule 32(c)(3)(C)                fact exercised that right.
therefore “envisions a personal colloquy
between the sentencing judge and the                          There are several exchanges in the
defendant” wherein the defendant is given a                transcript that support the government’s
“broad-ranging opportunity to speak.” United               contention: When his counsel tried to explain
States v. Myers, 150 F.3d 459, 461-62 (5th                 why Reyes had failed to provide the probation
Cir. 1998). To satisfy rule 32(c)(3)(C),                   department with contact information for any
                                                           relatives, Reyes interjected, explaining that he
   the court, the prosecutor, and the                      had no relatives in the United States. He then
   defendant must at the very least interact               proceeded extemporaneously to explain the
   in a manner that shows clearly and                      circumstances surrounding his prior
   convincingly that the defendant knew he                 conviction. Similarly, when asked about his
   had a right to speak on any subject of                  expectant wife’s due date, Reyes answered the
   his choosing prior to the imposition of                 question and then explained that he also had to
   sentence.                                               provide for his parents. He next remarked that
                                                           his family “ended up being the ones worst af-
Echegollen-Barreuta, 195 F.3d at 789                       fected by this whole situation.” At one point,
(quoting United States v. de Alba Pagan, 33                Reyes expressed his remorse to the court.
F.3d 125, 129 (1st Cir. 1994)).
                                                              Furthermore, ReyesSSeach time without
   Reyes argues that the court violated rule               invitationSSsupplemented several of his coun-
32(c)(3)(C) by failing explicitly to invite him to         sel’s answers, explaining his training while in
speak on any issue of his choosing before                  prison and the facts surrounding his illegal
sentencing.     The government disagrees,                  reentry. He undisputedly felt free to address
contending that Reyes’s interjections during               the court, not only at the court’s prompting,
                                                           but also at his own discretion.

   4
    (...continued)                                            Before sentencing, the court asked the
what it perceives to be sandbagging by defense             parties whether there was “anything else.”
counsel, we agree that both the government and the         The government admits that this query was
defense bar should take pains to notify the district       directed not only to Reyes, but also to both
court of any defects in the colloquy before                lawyers. The government contends, however,
sentencing. Inasmuch as the government argues              that Reyes should have interpreted it as an
that counsel’s silence justifies application of a          invitation to speak.
lower standard of review, however, that argument
lacks merit in light of our caselaw.
                                                              Given Reyes’s substantialSSoften unin-
   5
     See Dabeit, 231 F.3d at 981 (detailing the            vitedSSparticipation in the hearing, we agree
“several important functions” of the right of al-          that the question put Reyes on notice that he
locution); United States v. Vasquez, 216 F.3d 456,         was free to speak on any matter. That
457-58 (5th Cir.) (“The right of allocution dates          invitation, in addition to Reyes’s participation
back to 1689."), cert. denied, 121 S. Ct. 414              throughout the hearing, convinces us that
(2000).

                                                       3
Reyes “knew he had a right to speak on any
subject of his choosing prior to the imposition
of sentence.” The court thus fulfilled its
obligation under rule 32(c)(3)(C).

   AFFIRMED.




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