The Fifth Circuit Court of Appeals affirmed the conviction on direct appeal. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Movant raised two claims on appeal: (1) the trial court erred in failing to invite an allocution from movant and (2) the trial court misapplied the enhanced sentencing of 8 U.S.C. § 1326 (b)(2), due to an error in viewing a previous conviction as an "aggravated felony."
"First, it gives the defendant one more opportunity before conviction ‘to throw himself on the mercy of the court.’ " United States v. Dabeit , 231 F.3d 979, 981 (5th Cir. 2000), abrogated by Reyna , 358 F.3d 344. "The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Green , 365 U.S. at 304, 81 S.Ct. 653. The right "also has symbolic importance, ‘maximizing the perceived equity of the [sentencing] process.
523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348; United States v. Garcia-Mejia, 394 F.3d 396, 397 (5th Cir. 2004); United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).Dabeit, 231 F.3d at 984 (internal quotation marks and citation omitted).
Turning to his Apprendi challenge, as Garcia-Mejia concedes, his argument that the "felony" and "aggravated felony" provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of Apprendi is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). This court must follow Almendarez-Torres "unless and until the Supreme Court itself determines to overrule it."
Rather we have consistently held that this error requires automatic reversal. United States v. Dabeit, 231 F.3d 979, 981 (5th Cir. 2000); United States v. Myers, 150 F.3d 459 (5th Cir. 1998). We took this case en banc to reconsider these precedents.
Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348; see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000) (noting that the Supreme Court in Apprendi expressly declined to overrule Almendarez-Torres). This court therefore must follow Almendarez-Torres "unless and until the Supreme Court itself determines to overrule it."
The district court's denial of the right of allocution is never subject to plain or harmless error review under Rule 52; it requires automatic reversal. United States v. Dabeit, 231 F.3d 979, 981 (5th Cir. 2000); Myers, 150 F.3d at 463. III. DISCUSSION
The ability to speak directly to the sentencing judge "gives the defendant one more opportunity . . . to throw himself on the mercy of the court." United States v. Dabeit, 231 F.3d 979, 981 (5th Cir. 2000) (per curiam), cert. denied, 531 U.S. 1202, 121 S.Ct. 1214, 149 L.Ed.2d 126 (2001). The defendant's comments may, in some circumstances, have a tangible effect on the sentence imposed; the Supreme Court has noted that "[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself."
Generally, a PSR bears sufficient indicia of reliability to permit the district court to rely on it at sentencing. United States v. Dabeit, 231 F.3d 979, 983 (5th Cir. 2000); United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995). "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."
Nava appealed. United States v. Dabiet, 231 F.3d 979, 984 (5th Cir. 2000).