United States v. Hoot , 86 F. App'x 16 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 9, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50761
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN ARTHUR HOOT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-02-CR-317-ALL
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Kevin Hoot appeals his sentence for bank robbery in
violation of 18 U.S.C. § 2113(a). We consider this appeal
despite Hoot’s waiver of his right to appeal in his plea bargain
agreement because during the Rule 11 hearing the district court
did not ask the defendant whether he understood his “waiver of
appeal and the consequences.” See United States v. Robinson, 187
F.3d 516, 517-18 (5th Cir. 1999); see also FED. R. CRIM. P.
11(b)(1)(N). Nor did the district court ask Hoot whether he read
*
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that this opinion should not be published and is not precedent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.
No. 03-50761
-2-
the plea agreement and understood it. See United States v.
Portillo, 18 F.3d 290, 293 (5th Cir. 1994).
Hoot first claims that his guilty plea is invalid because
the district court failed to comply with FED. R. CRIM. P. 11 by
not asking him whether he understood the nature of supervised
release and by not advising him that the district court
sentencing must consider the sentencing guidelines but may depart
from them in certain specified circumstances. The guilty plea is
valid because Hoot failed to show a violation of his substantial
rights. See United States v. Cuevas-Andrade, 232 F.3d 440, 444
(5th Cir. 2000); United States v. Vasquez-Bernal, 167 F.3d 169,
171 (5th Cir. 1999).
For the first time on appeal, Hoot contends that his
sentence was unconstitutionally augumented when a sentencing
factor, threatening the death of a victim, was not alleged in his
indictment. As Hoot correctly acknowledges, this argument, based
on Apprendi v. New Jersey, 530 U.S. 466 (2000), is foreclosed by
our decision in United States v. Moreno, 289 F.3d 371 (5th Cir.
2002).
AFFIRMED.