United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 16, 2005
Charles R. Fulbruge III
Clerk
No. 05-40119
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LEONEL HERNANDEZ FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-601-1
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Before REAVLEY, JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Jose Leonel Hernandez Flores (Hernandez) appeals the
sentence that he received after he pleaded guilty to illegal
reentry following deportation. Hernandez argues that the
district court’s sentence under Guidelines it deemed mandatory
was plain error under United States v. Booker, 125 S. Ct. 738
(2005). He also argues that the district court’s increase in his
sentence under U.S.S.G. § 2L1.2(b)(1)(A)(i) for a 1999 California
drug conviction was plain error, a point the Government concedes.
*
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this opinion should not be published and is not precedent except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. 05-40119
-2-
Under the terms of the plea agreement, Hernandez expressly
waived the right to appeal his sentence but retained the right to
appeal “a sentence imposed above the statutory maximum” or “‘an
upward departure.’” At the rearraignment, the magistrate judge
explained to Hernandez that under the terms of his agreement he
gave up his right to appeal his case but told Hernandez: “You
could appeal for an illegal sentence, however.”
The Government seeks to enforce the appeal waiver. The
magistrate judge, however, failed to comply with FED. R. CRIM. P.
11(b)(1)(N) when he described the appeal waiver because the right
to appeal an illegal sentence is broader than the right to appeal
only a sentence imposed in excess of the statutory maximum or an
upward departure from the Sentencing Guidelines. Given the
district court’s Rule 11 error, we cannot conclude that Hernandez
knowingly waived his right to appeal the district court’s
application of the Guidelines. 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). Therefore, we do not enforce the
appeal waiver.
In light of our recent decision in United States v. Garza-
Lopez, 410 F.3d 268, 273-75 (5th Cir. 2005), petition for cert.
filed (Aug. 10, 2005) (No. 05-5892), the district court’s
application of U.S.S.G. § 2L1.2(b)(1)(A)(i) was reversible plain
error. Thus, Hernandez’s sentence is VACATED, and the case is
REMANDED for resentencing.
No. 05-40119
-3-
Because Hernandez’s sentence is vacated, this court need not
address his argument that the district court committed error
under Booker by sentencing him under a mandatory guidelines
regime. See Garza-Lopez, 410 F.3d at 275 & n.2.
VACATED; REMANDED.