United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 25, 2007
Charles R. Fulbruge III
Clerk
No. 04-40618
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
J. GUADALUPE DELGADO-RAMIREZ, also known as Zeferino Bazaldua-
Ramirez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-868-3
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Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
J. Guadalupe Delgado-Ramirez appeals the 60-month sentence
imposed following his guilty plea conviction for possession of
marijuana with intent to distribute. Delgado-Ramirez argues that
the district court did not properly describe the terms of his
appeal waiver in his plea agreement and, thus, it was not
knowingly and voluntarily executed and does not bar his appeal.
The district court’s statement during rearraignment that
Delgado-Ramirez could appeal an “illegal sentence” indicated that
*
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this opinion should not be published and is not precedent except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. 04-40618
-2-
there may have been exceptions to the waiver other than those
specifically stated. The district court did not review the
actual provisions of the waiver with Delgado-Ramirez and only
ascertained that Delgado-Ramirez understood an incorrect
summarization of the terms of the waiver provision in his plea
agreement. A district court must ascertain that a defendant
understands provisions in his plea agreement waiving the right to
appeal. FED. R. CRIM. P. 11(b)(1)(N). In light of the district
court’s Rule 11 error, it cannot be said that Delgado-Ramirez
knowingly waived the right to challenge his conviction or
sentence, and, therefore, his appeal waiver does not bar the
instant appeal. See United States v. Robinson, 187 F.3d 516, 517
(5th Cir. 1999).
Delgado-Ramirez argues that the district court erred in
increasing his offense level by two levels pursuant to U.S.S.G.
§ 3B1.1(c) based on his having a supervisory role in the offense.
He argues that it precluded him from qualifying for the
application of the safety valve provision.
A sentencing court’s determination that a defendant played a
leadership or supervisory role is a factual finding reviewable
only for clear error. United States v. Parker, 133 F.3d 322,
329-30 (5th Cir. 1998). Relevant factors in determining a
defendant’s role in the offense are “the exercise of decision
making authority, the nature of participation in the commission
of the offense, the recruitment of accomplices, the claimed right
No. 04-40618
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to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature
and scope of the illegal activity, and the degree of control and
authority exercised over others.” U.S.S.G. § 3B1.1, comment.
(n.4). The district court’s findings reflect that Delgado-
Ramirez was responsible for recruiting accomplices to the
offense, that he participated in the planning of how the offense
would be carried out and that he directed the others involved in
the offense. Delgado-Ramirez has not rebutted this evidence
reflecting Delgado-Ramirez’s supervisory role in the offense.
See id. The district court did not clearly err in making an
adjustment for Delgado-Ramirez’s supervisory role in the offense.
Parker, 133 F.3d at 329-30.
AFFIRMED.