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

. 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,

(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,

(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,

Almendarez-Torres,

(...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,

(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,

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,

, 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,

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.

4