* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

April 12, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

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

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:03-CR-359-ALL-D 

--------------------

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
No. 04-10496

-2-

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
No. 04-10496

-3-

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.