United States v. Reyes-Valdivia

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-40096
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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,
HIGGINBOTHAM, and SMITH,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Jesus Reyes-Valdivia (“Reyes”) pleaded
guilty of illegal reentry after deportation in vi-
olation of 8 U.S.C. § 1326. He appeals his
conviction and sentence, asserting the failure
to honor his right of allocution and the
government’s failure to allege in the indictment
every element of the crime of which he was
convicted.1 Finding no reversible error, we
* 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determined that this opinion should not be
published and is not precedent except under the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 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
appeal. After the government supplemented the
record with a portion of the transcriptSSheretofore
undiscoveredSSthat conclusively established the
voluntary nature of the guilty plea, Reyes
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affirm.
I.
After serving time in prison for the sale and
transportation of heroin, Reyes was deported
to Mexico in 1998. On August 1, 1999,
Border Patrol agents arrested him in Laredo,
Texas, and he was charged with illegal reentry
following removal.
The court entered judgment under § 1326-
(b)(2), despite the indictment’s failure to allege
a prior conviction or to cite subsection (b)(2)
of the statute.2 The court subsequently held a
sentencing hearing during which the court
never informed Reyes of his right of
allocution. Nonetheless, Reyes repeatedly,
and sometimes without invitation, participated
in the discussion between counsel and the
court.
II.
Reyes contends that the indictment failed to
allege that he had committed an aggravated
felony as specified in § 1326(b)(2). He does
not contest that his prior conviction satisfies
the definition of “aggravated felony.”
Reyes acknowledges that he failed to raise
the issue before the district court; likewise, he
admits that his argument is foreclosed by Al-
mendarez-Torres v. United States, 523 U.S.
224 (1998).3 Nonetheless, he argues that
Apprendi v. New Jersey, 530 U.S. 466 (2000),
calls Almendarez-Torres sufficiently intodoubt
to allow us to revisit the issue. His argument
lacks merit. In Apprendi, “the Supreme Court
expressly declined to overrule Almendarez-
Torres.” United States v. Dabeit, 231 F.3d
379, 984 (5th Cir. 2000), cert. denied, 121 S.
Ct. 1214 (2001).
III.
Reyes asserts that the failure to advise him
of his right of allocution rendered his sentence
fatally defective. Rule 32(c)(3)(C), FED. R.
CRIM. P., requires a court to “address the de-
fendant personally and determine whether the
defendant wishes to make a statement and to
present any information in mitigation of the
sentence . . . .” We review de novo the
compliance with the Federal Rules of Criminal
Procedure. United States v. Echegollen-Bar-
rueta, 195 F.3d 786, 789 (5th Cir. 1999).
Moreover, we do not subject the issue of al-
locution to the harmless or plain error analyses
of FED. R. CRIM. P. 52; instead, we must
vacate any sentence imposed in violation of
rule 32(c)(3)(C), irrespective of whether the
defendant raised the issue of allocution before
the sentencing court or whether the error was
harmless. Id.4
1(...continued)
abandoned that argument in his reply brief, so we
do not address it.
2 Section 1326(b)(2) specifies that, “in the case
of any alien . . . whose removal was subsequent to
a conviction for commission of an aggravated
felony, such alien shall be fined . . ., imprisoned not
more than 20 years, or both . . . .” Subsection
(b)(2) imposes a greater sentence than does
§ 1326(a), which governs simple reentry after
deportation.
3 Almendarez-Torres, 523 U.S. at 235, 247,
held that the “aggravated felony” provision of
§ 1326(b)(2) serves merely as a sentence
enhancement, not as an additional element to a
crime separate from simple reentry, and therefore
that the existence of a prior conviction need not be
alleged in the underlying indictment.
4 The government describes defense counsel’s
silence in the face of the court’s alleged failure to
comply with rule 32(c)(3)(C) as “disturbing.” To
the extent that the government takes issue with
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We have recognized both the historical sig-
nificance and the continuing importance of the
right of allocution.5 Rule 32(c)(3)(C)
therefore “envisions a personal colloquy
between the sentencing judge and the
defendant” wherein the defendant is given a
“broad-ranging opportunity to speak.” United
States v. Myers, 150 F.3d 459, 461-62 (5th
Cir. 1998). To satisfy rule 32(c)(3)(C),
the court, the prosecutor, and the
defendant must at the very least interact
in a manner that shows clearly and
convincingly that the defendant knew he
had a right to speak on any subject of
his choosing prior to the imposition of
sentence.
Echegollen-Barreuta, 195 F.3d at 789
(quoting United States v. de Alba Pagan, 33
F.3d 125, 129 (1st Cir. 1994)).
Reyes argues that the court violated rule
32(c)(3)(C) by failing explicitly to invite him to
speak on any issue of his choosing before
sentencing. The government disagrees,
contending that Reyes’s interjections during
the hearing prove not only that he knew he had
a right to speak on any subject, but that he in
fact exercised that right.
There are several exchanges in the
transcript that support the government’s
contention: When his counsel tried to explain
why Reyes had failed to provide the probation
department with contact information for any
relatives, Reyes interjected, explaining that he
had no relatives in the United States. He then
proceeded extemporaneously to explain the
circumstances surrounding his prior
conviction. Similarly, when asked about his
expectant wife’s due date, Reyes answered the
question and then explained that he also had to
provide for his parents. He next remarked that
his family “ended up being the ones worst af-
fected by this whole situation.” At one point,
Reyes expressed his remorse to the court.
Furthermore, ReyesSSeach time without
invitationSSsupplemented several of his coun-
sel’s answers, explaining his training while in
prison and the facts surrounding his illegal
reentry. He undisputedly felt free to address
the court, not only at the court’s prompting,
but also at his own discretion.
Before sentencing, the court asked the
parties whether there was “anything else.”
The government admits that this query was
directed not only to Reyes, but also to both
lawyers. The government contends, however,
that Reyes should have interpreted it as an
invitation to speak.
Given Reyes’s substantialSSoften unin-
vitedSSparticipation in the hearing, we agree
that the question put Reyes on notice that he
was free to speak on any matter. That
invitation, in addition to Reyes’s participation
throughout the hearing, convinces us that
4(...continued)
what it perceives to be sandbagging by defense
counsel, we agree that both the government and the
defense bar should take pains to notify the district
court of any defects in the colloquy before
sentencing. Inasmuch as the government argues
that counsel’s silence justifies application of a
lower standard of review, however, that argument
lacks merit in light of our caselaw.
5 See Dabeit, 231 F.3d at 981 (detailing the
“several important functions” of the right of al-
locution); United States v. Vasquez, 216 F.3d 456,
457-58 (5th Cir.) (“The right of allocution dates
back to 1689."), cert. denied, 121 S. Ct. 414
(2000).

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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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