United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 12, 2005
Charles R. Fulbruge III
Clerk
No. 04-10496
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DANIEL BELMONTE-MARTIN, also known as Jose Angel Rivera, also
known as Jose Angel Rivera Martinez, also known as Raul Trejo
Defendant - Appellant
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-359-ALL-D
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Before KING, Chief Judge, and JOLLY and CLEMENT, Circuit Judges.
PER CURIAM:*
Daniel Belmonte-Martin (“Belmonte”) appeals his guilty-plea
conviction for illegal reentry into the United States after
deportation. He was sentenced to 46 months of imprisonment and
to a three-year term of supervised release. Belmonte’s court
appointed attorney on appeal moved to withdraw and filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967). Counsel’s
motion was denied and briefing was ordered on the following
issue: whether the district court’s statement at sentencing
*
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this opinion should not be published and is not precedent except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. 04-10496
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regarding the existence of a plea agreement constitutes plain
error affecting Belmonte’s substantial rights.
Counsel complied with this court’s order and filed a brief
addressing the above issue and also raised two additional issues
regarding Belmonte’s sentence. Counsel, on behalf of Belmonte,
argues that the district court’s statement that no plea agreement
existed in the instant case should be understood as indicating
the district court’s implicit rejection of the plea agreement.
He further asserts that the district court plainly erred in
rejecting the plea agreement without giving Belmonte an
opportunity under FED. R. CrIM. P. 11(c)(5) to withdraw his
guilty plea. He thus contends that this court should not enforce
the plea agreement’s waiver-of-appeal provision, and consequently
address the merits of Belmonte’s sentencing claims raised on
appeal.
The Government argues that the district court’s statement at
sentencing that there was no plea agreement in the instant case
was not plain error because the record as a whole indicates that
the district court implicitly accepted the plea agreement. In
support of its argument, the Government points out that the
district court did not follow the procedure required by FED.
R. CRIM. P. 11(c)(5) in rejecting a plea agreement. The
Government further points out that the district court did accept,
as provided in the plea agreement, the Government’s
recommendation that Belmonte be sentenced at the low end of the
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applicable guideline range. The Government also points out that
the probation officer referred to the plea agreement throughout
the presentence report.
While the Government’s argument is reasonable, it is not
entirely persuasive because the district court expressly stated
on the record that no plea agreement existed in the instant case.
It is unclear from the record whether the district court intended
to accept or reject the agreement at sentencing. The resolution
of whether Belmonte’s substantial rights have been affected by
the district court’s error depends on whether the district court
intended to accept or reject the agreement. Likewise, whether
this court can address the merits of Belmonte’s sentencing
claims, which he raises on appeal, depends on whether the
district court intended to accept or reject the agreement.
Accordingly, the case is REMANDED for the limited purpose of
clarifying the record as to whether the district court accepted
or rejected the plea agreement at Belmonte’s sentencing. We
retain jurisdiction over the appeal.
LIMITED REMAND.