United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 26, 2005
Charles R. Fulbruge III
Clerk
No. 04-40675
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
LUIS ANGEL CUELLAR
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-707-2
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Before KING, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Luis Angel Cuellar appeals the sentence he received after he
pleaded guilty pursuant to a written agreement to conspiring to
possess with intent to distribute more than a hundred kilograms
of marijuana. He also appeals the criminal forfeiture of his
residence.
The Government argues that because Cuellar explicitly agreed
to waive appeal of his sentence except a sentence imposed above
the statutory maximum or an upward departure, he has waived the
*
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this opinion should not be published and is not precedent except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. 04-40675
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instant appeal of his sentence. Cuellar’s appeal waiver was
rendered not knowing and voluntary when the district court
advised Cuellar at his rearraignment hearing that Cuellar could
appeal an “illegal sentence.” See United States v. McKinney, 406
F.3d 744, 746 (5th Cir. 2005); United States v. Robinson, 187
F.3d 516, 517-18 (5th Cir. 1999); United States v. Portillo, 18
F.3d 290, 292 (5th Cir. 1994); FED. R. CRIM. P. 11(b)(1)(N).
Therefore, the appeal waiver does not bar the instant appeal.
Cuellar argues that the district court misapplied U.S.S.G.
§ 3B1.4 because a preponderance of the evidence fails to show
that he used a person under the age of 18 to commit his offense
or to avoid being caught in committing his offense. The
Government agrees, candidly admitting that the enhancement was
not warranted because § 3B1.4 requires affirmative action on the
part of the defendant to involve the minor and it had no evidence
that Cuellar was actually involved in using the children.
Because Cuellar objected to the enhancement in the district
court, the district court’s interpretation and application of
U.S.S.G. § 3B1.4 is reviewed de novo, and its factual findings
are reviewed for clear error. See United States v. Villanueva,
408 F.3d 193, 203 n.9 (5th Cir. 2005)(post Booker, same standard
of review applies), petition for cert. filed (July 26, 2005) (No.
05-5580); United States v. Holmes, 406 F.3d 337, 363 (5th Cir.
2005), petition for cert. filed (July 1, 2005) (No. 05-41738).
“A factual finding is not clearly erroneous as long as it is
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plausible in light of the record as a whole.” Holmes, 406 F.3d
at 363 (internal quotation marks and citation omitted).
Section 3B1.4 provides for a two-level increase in the base
offense level: “If the defendant used or attempted to use a
person less than eighteen years of age to commit the offense or
assist in avoiding detection. . . .” U.S.S.G. § 3B1.4.
Commentary to the guideline states: “‘Used or attempted to use’
includes directing, commanding, encouraging, intimidating,
counseling, training, procuring, recruiting, or soliciting.” Id.
at comment. (n.1).
The Presentence Report (PSR) stated that Cuellar was present
at a meeting where a plan was devised that included bringing
along two 13 year olds in a vehicle that carried marijuana owned
by Cuellar. The PSR, however, did not attribute any affirmative
act by Cuellar to involve the children, and the Government
candidly admits that it is “hard pressed” to present any evidence
establishing that Cuellar had anything to do with the children’s
involvement. The district court therefore erred in applying the
§ 3B1.4 enhancement. The sentence is VACATED, and the case
REMANDED for resentencing.
Because, under United States v. Booker, 125 S. Ct. 738
(2005), the district court will not be bound by the Sentencing
Guidelines on remand, and could impose an altogether different
sentence, we need not address Cuellar’s argument that the
district court erred when it computed his base offense level
No. 04-40675
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using relevant conduct. See United States v. Akpan, 407 F.3d
360, 377 n.62 (5th Cir. 2005).
Cuellar argues that a preponderance of the evidence did not
support the criminal forfeiture of his residence. Our review of
the evidence convinces us that there was ample admissible
evidence that property was acquired during the period of the drug
conspiracy for which there was no likely source for such property
other than proceeds from the drug conspiracy. See 21 U.S.C.
§ 853(d). Cuellar failed to rebut the presumption that the
property is therefore subject to forfeiture under § 853(a).
Accordingly, in light of the foregoing, we affirm the
guilty-plea conviction and criminal forfeiture but vacate the
sentence and remand for resentencing.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.