United States Court of Appeals
For the Fifth Circuit
No. 00-10065
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
KHAMIS KHALIL DABEIT,
Defendant-Appellant,
Appeal from the United States District Court
for the Northern District of Texas
October 30, 2000
Before DAVIS and EMILIO M. GARZA, Circuit Judges, and POGUE*,
Judge.
PER CURIAM:
FACTS AND PROCEEDINGS
Khamis Khalil Dabeit, a Jordanian national who is not a
citizen of the United States, was deported from the United States
on March 17, 1997. Around June 15, 1999, Dabeit, without receiving
approval to reenter the country, was once again found in the United
States. Dabeit was charged by indictment with a single count of
illegal reentry after deportation in violation of 8 U.S.C. § 1326,
to which he pled guilty.1
Dabeit appeals his sentencing proceeding. He bases his claim
*
Judge of the U.S. Court of International Trade, sitting by
designation.
1
Dabeit and the attorney for the government did not reach a plea
agreement. Rather, Dabeit pled guilty to the indictment.
on the absence of an invitation for allocution, and on the
misapplication of enhanced sentencing through 8 U.S.C. §
1326(b)(2), due to an error in viewing his previous conviction as
an “aggravated felony.”
RIGHT OF ALLOCUTION
Before imposing its sentence, the court is required by Rule 32
(c)(3)(C) to personally address the defendant, inquiring into the
defendant’s wish to speak on his behalf. See Fed. R. Crim. P.
32(c)(3)(C). The right of allocution has several important
functions. First, it gives the defendant one more opportunity
before conviction “to throw himself on the mercy of the court.”
United States v. Myers, 150 F.3d 459, 463 (5th Cir. 1998). It also
has symbolic importance, “maximizing the perceived equity of the
[sentencing] process.” Id. (citing United States v. De Alba Pagan,
33 F.3d 125, 129 (1st Cir. 1994)). This court reviews whether a
district court complied with Rule 32(c)(3)(C) de novo. See Id. at
461. This Circuit does not subject the district court’s failure to
comply with Rule 32(c)(3)(C) to the harmless or plain error
provision of Fed. R. Crim. P. 52. Rather, the district court’s
failure to comply with Rule 32(c)(3)(C) requires automatic
reversal. See Id.
The question presented by this case is similar to that in
United States v. Echegollen-Barrueta, 195 F.3d 786 (5th Cir. 1999).
In Echegollen-Barrueta, the court personally addressed Echegollen
2
asking, “Do you have anything to say to me before I decide what to
do in your case?” Id. at 788. Echegollen, believing the question
was in the context of the government’s claim that he had obstructed
justice, replied that he had not attempted to escape. See Id. Even
though the Judge repeated the question, the court found that
Echegollen misunderstood the Judge’s invitation to speak. Instead
of making a statement to mitigate his offense, Echegollen believed
he was asked to speak on the issue of obstruction of justice. As a
result, Echegollen’s response demonstrated a misunderstanding about
what he could discuss and his sentence was vacated and remanded for
failure to follow Rule 32(c)(3)(C). See Id.
In Dabeit’s situation, however, there is no evidence that
Dabeit misunderstood the court’s invitation to speak. The court
notified Dabeit prior to the conclusion of the guilty plea hearing
that “[a]t your sentencing, you will have the absolute right to
make a statement to me before you are sentenced if you choose to.”
R. Vol. 2, page 13. Then, at the sentencing hearing, the Judge
addressed Dabeit asking, “Mr. Dabeit, one last shot, is there
anything else you want to say? You don’t have to say a thing, but
if you want to, I’ll listen to you. Anything else?” R. Vol. 4,
page 3. The Judge in Echegollen-Barrueta merely asked the
defendant if he had “anything to say.” Echegollen-Barrueta, 195
F.3d at 788. As a result, that court held that there was not
“clear[] and convincing[ . . . evidence] that the defendant knew
3
he had a right to speak on any subject of his choosing prior to the
imposition of sentence.” Id. Dabeit, however, was told by the
Judge that this was his last opportunity to speak. This
notification of his last opportunity to talk, coupled with the
previous discussion at the plea hearing that Dabeit would have a
chance to make a statement concerning sentencing, distinguishes
Dabeit’s situation from Echegollen’s.
Dabeit also argues that since the court continued with a
lengthy substantive discussion on Dabeit’s motion for a downward
departure, after asking Dabeit if he had anything more he wanted to
discuss, there was a violation of Rule 32 (c)(3)(C). Dabeit claims
that due to the continued discussion, the invitation was not a
request to speak about sentencing, rather it was an invitation to
discuss the downward departure motion. Although the court
continued without further inviting Dabeit to speak, no violation of
Rule 32 (c)(3)(C) occurred. Previously, this court held that it
was unnecessary for a court to renew its invitation for allocution,
even when further discussion took place between the invitation for
allocution and the eventual pronouncement of sentencing. See
United States v. Washington, 44 F.3d 1271, 1276-77 (5th Cir. 1995).
Therefore, it is not necessary for a judge to renew the offer of
allocution “or inquire why [the defendant] did not accept his
invitation.” See Id. at 1276 (internal citations and quotations
omitted).
4
Although Dabeit was afforded an opportunity to speak after
sentencing, the case law in this Circuit is unclear as to whether
the ability to speak after the pronouncement of the sentence and
before the sentence commences satisfies the right of allocution.
Since Dabeit was invited to speak prior to sentencing, however, it
is unnecessary to consider this issue at the present time.
Dabeit was invited to speak on his behalf and declined to do
so. He was also previously informed of his right to allocution.
Rule 32(c)(3)(C) was not compromised merely because further
discussion ensued after the initial asking and the Judge’s issuance
of Dabeit’s sentence. Therefore, Dabeit was given an opportunity
for allocution and his sentence should not be remanded on this
ground.
AGGRAVATED FELONY
The Presentence Investigation Report (PSR) recommended a 16
level enhancement to Dabeit’s sentence on the ground that he had
previously been deported following a criminal conviction for an
“aggravated felony.” As a result, the district court sentenced
Dabeit from 37 to 46 months imprisonment for illegal entry after
deportation, rather than the six to twelve months available without
the enhancement. The district court based its decision on the PSR,
as well as a stipulation by Dabeit that his previous conviction was
5
an aggravated felony.2
Dabeit asserts that the district court’s application of the
sentencing guidelines was in error. Since Dabeit did not raise
this issue in the district court, this court will only review for
plain error. See United States v. Olano, 507 U.S. 725, 733 (1993).
In order to satisfy this standard there must be (1) an error, (2)
the error must be “plain,” “clear,” or “obvious,” and (3) the error
must affect a substantial right. See Olano, 507 U.S. at 733. If
these factors are met, this court, in its discretion, should
correct the error “if the error seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” Id. at
736 (internal quotations and citations omitted).
In 1981, Dabeit was convicted for conspiracy to perpetrate a
checking and savings account kite scheme in violation of 18 U.S.C.
§§ 1014 and 2113(b). Dabeit asserts that the government did not
meet its burden of proof in demonstrating that his prior conviction
constituted an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(A).3
2
A factual resume summarizing the events leading to the indictment was
introduced at the rearraignment proceeding. The factual resume, which listed
Dabeit’s previous conviction as an aggravated felony, was signed by the
parties. The court also asked Dabeit if he agreed with the facts contained
within the resume. After an affirmative response, Dabeit was asked to
stipulate under oath that the allegations in the factual resume were correct.
3
Dabeit claims that in order for his § 1014 conviction to constitute an
aggravated felony under U.S.S.G. § 2L1.2(b)(1)(A), the loss to any victim or
victims must exceed $10,000. See U.S. Sentencing Guidelines §
2L1.2(b)(1)(A)(2000), 8 U.S.C. § 1101(a)(43)(M),(U)(2000). According to
Dabeit, the record contains no evidence that the loss to any victim exceeded
the required statutory amount. As a result, the government did not meet the
requisite burden of proof. Since we conclude that the conviction for §
2113(b) does satisfy the elements of an aggravated felony, we need not reach
6
See U.S. Sentencing Guidelines §2L1.2(b)(1)(A)(2000), 8 U.S.C. §
1101(a)(43)(2000)(defining aggravated felony for sentencing
purposes).
The party, in this case the government, who seeks adjustment
of the base offense level under the sentencing guidelines, must
prove by a preponderance of the evidence that the adjustment is
warranted. See United States v. Patterson, 962 F.2d 409, 415 (5th
Cir. 1992). The evidence presented to the district court included
the PSR, which recommended an enhanced sentence based on Dabeit’s
previous conviction, and Dabeit’s factual resume adopted in the
guilty plea, which stipulated that he had previously been convicted
of an aggravated felony.
Generally, a PSR is considered “sufficient indicia of
reliability, such that a sentencing judge may consider it as
evidence in making the factual determinations required by the
Sentencing Guidelines.” United States v. Huerta, 182 F.3d 361, 364
(5th Cir. 1999). The PSR, however, cannot just include statements,
in the hope of converting such statements into reliable evidence,
without providing any information for the basis of the statements.
See United States v. Elwood, 999 F.2d 814, 817-18 (5th Cir. 1993).
In this case, the PSR recommended an enhancement of Dabeit’s
sentence based on his previous offense, an aggravated felony.
the issue of § 1014. The definition for aggravated felony relevant to
Dabeit’s § 2113(b) conviction can be found in 8 U.S.C. § 1101(a)(43)(G),(U)
not § 1101(a)(43)(M),(U).
7
“Aggravated felony” is defined in 8 U.S.C. § 1101(a)(43).
According to the statutory definition, aggravated felony includes
theft and burglary offenses which carry a term of imprisonment of
at least one year. See 8 U.S.C. § 1101(a)(43)(G),(U)(2000).
Black’s law dictionary defines theft as “the act of stealing.”
Black’s Law Dictionary 1477(6th ed. 1990).
Dabeit’s conviction for conspiracy, for which he was sentenced
to four years imprisonment, in violation of 18 U.S.C. § 2113(b),
involves the taking of another’s property. The statute makes it
illegal to take and carry away, “with [the] intent to steal or
purloin, any property or money or any other thing of value
exceeding $1,000, belonging to, or in the care, custody, control,
management, or possession of any bank, credit union, or any savings
and loan association.” 18 U.S.C. § 2113(b)(2000). Since Dabeit’s
previous conviction fits within the definition of a theft offense
and his sentence was for more than one year, the court correctly
enhanced Dabeit’s sentence and the plain error test is not
satisfied.
PRESERVING AN ISSUE FOR REVIEW
At his guilty plea hearing, Dabeit was not informed that the
“aggravated felony” provision of 8 U.S.C. § 1326(b)(2) was an
essential element of the offense to which he pled guilty. Although
this is consistent with the United States Supreme Court holding in
Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998),
8
Dabeit wishes to preserve the issue for further review based on a
good faith belief that the decision will soon be overturned. This
argument is without merit.
In a recent case, Apprendi v. New Jersey, 120 S.Ct. 2348, 2362
(2000), the Supreme Court expressly declined to overrule
Almendarez-Torres. This court has a duty to follow precedent,
especially Supreme Court precedent. See Bhandari v. First National
Bank of Commerce, 829 F.2d 1343, 1352 (5th Cir. 1987)(Higginbotham,
J., concurring).
The Supreme Court has left no doubt that as a
constitutionally inferior court, we are compelled to
follow faithfully a directly controlling Supreme Court
precedent unless and until the Supreme Court itself
determines to overrule it. We may not reject, dismiss,
disregard, or deny Supreme Court precedent, even if, in
a particular case, it seems pellucidly clear to
litigants, lawyers, and lower court judges alike that,
given the opportunity, the Supreme Court would overrule
its precedent.
Hopwood v. State of Texas, et. al., 84 F.3d 720, 722 (5th Cir,
1996). Since the Supreme Court has unequivocally spoken on
this issue, there was no error in failing to inform Dabeit
that the aggravated felony provision was an essential element
of his sentencing.
CONCLUSION
For the reasons stated above, we affirm the district
court’s sentencing of the appellant.
9