United States v. Navarrete

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 29, 2005
Charles R. Fulbruge III
Clerk
No. 04-41438
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GILBERTO NAVARRETE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-413-ALL
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Before JOLLY, JONES, and OWEN, Circuit Judges.
PER CURIAM:*
Jose Gilbert Navarrete appeals the 40-month sentence imposed
by the district court following his guilty-plea conviction for
illegally reentering the United States, in violation of 8 U.S.C.
§ 1326. The Government seeks to enforce the waiver-of-appeal
provision of Navarrete’s plea agreement.
In his plea agreement, Navarrete waived, inter alia, “the
right to appeal the sentence imposed or the manner in which it
was determined,” except for a sentence above the statutory
*
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this opinion should not be published and is not precedent except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. 04-41438
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maximum or an upward departure from the applicable Guidelines
range. Navarrete contends that this waiver provision is not
enforceable because, at his rearraignment, the magistrate judge
incorrectly told him that he retained the right to appeal “a
sentence that is imposed illegally.” We agree. Because the
magistrate judge inaccurately described the waiver provision,
Navarrete’s waiver cannot be deemed knowing and voluntary with
respect to “a sentence that is imposed illegally.” See FED. R.
CRIM. P. 11(b)(1)(N); United States v. Robinson, 187 F.3d 516,
517 (5th Cir. 1999).
Navarrete argues that the district court erred in sentencing
him under pursuant to a mandatory application of the Sentencing
Guidelines. See United States v. Booker, 125 S. Ct. 738, 757
(2005). He concedes that he did not raise this issue in the
district court, and that review is therefore for plain error.
Navarrete contends, however, that he need not show prejudice
because the error is structural and because prejudice should be
presumed.
This court has rejected the contention that the imposition
of sentence under a mandatory application of the Sentencing
Guidelines is structural or is presumptively prejudicial. United
States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005),
petition for cert. filed (July 11, 2005) (No. 05-5297). Because
Navarrete did not raise the issue in the district court, he must
demonstrate plain error, which requires him to establish that
No. 04-41438
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(1) there is an error; (2) that is clear or obvious; and (3) that
affects his substantial rights. See United States v. Olano,
507 U.S. 725, 732-34 (1993). If these criteria are met, this
court has the authority correct the error, but is not required to
do so. See id. at 736.
Here, “there is no indication in the record from the
sentencing judge’s remarks or otherwise that gives us any clue as
to whether she would have reached a different conclusion” as to
Navarrete’s sentence if sentencing under an advisory guidelines
system. See United States v. Mares, 402 F.3d 511, 522 (5th Cir.
2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).
Accordingly, Navarrete cannot establish plain error. The
judgment of the district court is AFFIRMED.