Takeaway
In short, this case confirms that a clear pre-sentence invitation to speak satisfies Rule 32, and that a bank-theft conspiracy carrying more than one year of imprisonment supports the aggravated-felony enhancement for illegal reentry.
Khamis Khalil Dabeit, a Jordanian national, was deported in March 1997. In June 1999, he was found in the United States without permission to reenter. He pleaded guilty, without a plea agreement, to illegal reentry after deportation under 8 U.S.C. § 1326.
The presentence report recommended a 16-level enhancement because Dabeit had been deported after an aggravated-felony conviction. His prior conviction involved a conspiracy to carry out a checking and savings-account kite scheme under 18 U.S.C. §§ 1014 and 2113(b), for which he received four years' imprisonment. The district court applied the enhancement and imposed a sentence within the resulting 37-to-46-month range. Dabeit appealed, arguing that he was denied a proper opportunity for allocution, that his earlier conviction was not an aggravated felony, and that the aggravated-felony provision should have been treated as an element of the offense.
Issue #1
Whether the district court violated Rule 32 by failing to provide Dabeit a meaningful opportunity to speak in mitigation before sentencing.
Holding
No. The court personally invited Dabeit to speak before imposing sentence, and the later discussion of his departure motion did not require a renewed invitation to allocute.
Reasoning
Rule 32(c)(3)(C) required the sentencing court to address Dabeit personally and ask whether he wished to speak before sentence was imposed. The Fifth Circuit reviews compliance with that rule de novo and ordinarily treats a failure to comply as requiring automatic reversal, rather than applying harmless-error or plain-error review.
The record showed a sufficient and understandable invitation. At the guilty-plea hearing, the judge told Dabeit that at sentencing he would have an absolute right to make a statement before being sentenced. At the sentencing hearing, the judge then asked Dabeit whether there was anything else he wanted to say, explained that he need not speak, and assured him that the court would listen.
This case differed from United States v. Echegollen-Barrueta, where the defendant reasonably understood the judge's question as limited to a disputed obstruction-of-justice issue. Dabeit had been expressly told in advance that he could address the court at sentencing, and the judge characterized the later invitation as his final opportunity to speak. Nothing in the record suggested that Dabeit misunderstood the scope of his right.
The court's continued discussion of Dabeit's motion for a downward departure after the invitation did not invalidate the allocution. Under United States v. Washington, a sentencing judge need not repeat an otherwise adequate invitation merely because further discussion occurs before the sentence is announced. Because Dabeit was given and declined a meaningful pre-sentence opportunity to speak, Rule 32 was satisfied.
Issue #2
Whether the district court plainly erred by treating Dabeit's prior conspiracy conviction under 18 U.S.C. § 2113(b) as an aggravated felony and applying the 16-level illegal-reentry enhancement.
Holding
No. The prior conviction was a theft offense for which Dabeit received more than one year of imprisonment, and therefore qualified as an aggravated felony.
Reasoning
Because Dabeit did not object to the enhancement in the district court, the Fifth Circuit applied plain-error review. He therefore had to show an error that was clear or obvious, affected a substantial right, and seriously undermined the fairness, integrity, or public reputation of judicial proceedings.
The government bore the burden of proving the basis for a Guidelines adjustment by a preponderance of the evidence. The record included the presentence report's recommendation and Dabeit's sworn acceptance of a factual resume stipulating that his previous conviction was an aggravated felony. Although a presentence report cannot rest on unsupported assertions alone, it may be relied upon when it has adequate indicia of reliability.
An aggravated felony includes a theft offense for which the term of imprisonment is at least one year, including an attempt or conspiracy to commit such an offense. Section 2113(b) criminalizes taking and carrying away property belonging to or controlled by a bank, credit union, or savings and loan association with intent to steal or purloin. That offense fits the ordinary meaning of theft.
Dabeit's § 2113(b) conspiracy conviction resulted in a four-year sentence, easily exceeding the one-year threshold. Thus, it independently supported the aggravated-felony enhancement. The court did not need to decide whether his separate § 1014 offense qualified under the provision requiring a loss exceeding $10,000.
Issue #3
Whether the aggravated-felony provision in 8 U.S.C. § 1326(b)(2) had to be alleged as an element of the offense and explained to Dabeit during his guilty plea.
Holding
No. Almendarez-Torres treated the prior-conviction provision as a sentencing factor, and Apprendi had not overruled that controlling precedent.
Reasoning
Dabeit acknowledged that Almendarez-Torres v. United States held that § 1326(b)(2)'s prior-aggravated-felony provision is a sentencing factor rather than an element that must be charged and proved as part of the offense. He raised the issue only to preserve an argument that the Supreme Court might later abandon that decision.
The Fifth Circuit held that it was bound to follow directly controlling Supreme Court precedent unless the Supreme Court itself overruled it. Apprendi v. New Jersey expressly declined to overrule Almendarez-Torres. Consequently, the district court committed no error by not advising Dabeit that aggravated-felony status was an element of the offense to which he pleaded guilty.