United States v. Dabeit

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

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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

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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

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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

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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).

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“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.

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