IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40741
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERBER FRANCISCO SURIANO-HERNANDEZ,
Defendant-Appellant.
_________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-103-1
__________________________________________
February 23, 2001
Before POLITZ, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
PER CURIAM:*
Gerber Francisco Suriano-Hernandez appeals his conviction and sentence
from a guilty plea for illegal reentry following a prior deportation.1 Suriano
contends that the felony conviction that resulted in his increased sentence under 8
U.S.C. § 1326(b)(2) was an element of the offense that should have been charged in
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
8 U.S.C. § 1326.
the indictment. He acknowledges that his argument is foreclosed by Almendarez-
Torres v. United States,2 but he seeks to preserve the issue for Supreme Court
review in light of Apprendi v. New Jersey.3 Apprendi did not overrule Almendarez-
Torres and this argument, therefore, is foreclosed.4
Suriano also maintains that the district court denied his right to allocution. 5
The Government acknowledges that the court failed in this regard and that the
sentence should be vacated and the case remanded to allow Suriano an opportunity
at resentencing to speak on his own behalf.6 Accordingly, Suriano’s sentence is
VACATED and the case is REMANDED for resentencing.
2
523 U.S. 224 (1998).
3
120 S. Ct. 2348 (2000).
4
Apprendi, 120 S. Ct. at 2361-62 & n.15; Almendarez-Torres, 523 U.S. at 235.
5
FED. R. CRIM. P. 32(c)(3)(C); United States v. Myers, 150 F.3d 459 (5th Cir. 1998).
6
United States v. Echegollen-Barrueta, 195 F.3d 786 (5th Cir. 1999).