### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 41375 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. GERARDO CARILLO DELBOSQUE , Defendant

- Appellant

Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:11

- CV

- 252

Before KING, CLEMENT, and OWEN, Circuit Judges. PER CURIAM: * This court granted Gerardo Carillo Delbosque, federal prisoner # 16494

- 078, a certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2255 motion, wherein he challenged his 250

- month sentence for engaging in a continuing criminal enterpr ise. See United States v. Delbosque , No. 14

- 41375 (5th Cir. Sept. 9, 2015). The COA specified the issues on appeal as follows: (1) whether the appeal

- waiver provision barred Delbosque’s § 2255 motion as it

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 19, 2016 Lyle W. Cayce Clerk Case: 14-41375 Document: 00513470199 Page: 1 Date Filed: 04/19/2016No. 14

- 41375

2 pertains to his claim s that counsel’s ineffecti veness rendered his plea agreement invalid; (2) whether Delbosque stated a claim of ineffective assistance of counsel based on his allegation that counsel obtained his signature on the plea agreement without informing him of the nature of the document and instructed him to answer all of the court’s questions in the affirmative during rearraignment; (3) whether Delbosque stated a claim of ineffective assistance of counsel based on his allegation that counsel advised him to agree to a non

- advantageous plea ag reement stipulating that he had acted in concert with at least five other persons where the facts of the case did not support it; and (4) whether the district court erred in failing to hold an evidentiary hearing. A COA was denied as to Delbosque’s ineffe ctive assistance of counsel claims related to sentencing issues. Without conceding that Delbosque’s guilty plea was unknowing and involuntary, the Government acknowledges that the appeal

- waiver provision in Delbosque’s plea agreement did not bar all of hi s ineffective assistance of counsel claims. The Government further acknowledges that Delbosque arguably has raised claims of ine ffective assistance of counsel. In order to give Delbosque’s defense counsel an opportunity to respond to Delbosque’s allegati ons, the Government requests that the case be remanded to the district court for an evi dentiary hearing. Delbosque opposes the Government’s motion, arguing that an evidentiary hearing is unnecessary since it is evident from the record that he was denied e ffective assistance of counsel in connection with his guilty plea and plea agreement. The Government’s motion is well

- taken since the record is not sufficiently developed for a determination of the merit s of Delbosque’s ineffective assistance of counsel claims. See United States v. Villegas

Rodriguez , 17 1 F.3d 224, 230 (5th Cir. 1999). Accordingly, the district court’s Case: 14-41375 Document: 00513470199 Page: 2 Date Filed: 04/19/2016No. 14

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3 judgment is vacated in part and the case is remanded for an evidentiary hearing on the issues on which a COA was granted. The Governme nt’s alternative motion for an extension of time to file a n out

- of

- time brief is denied as moot. Delbosque’s motion for appointment of counsel on appeal is also denied. MOTION TO REMAND GRANTED; JUDGMENT VACATED IN PART; MOTION FOR EXTENSION OF TIME TO FILE OUT

- OF

- TIME BRIEF AND MOTION FOR APPOINTMEN T OF COUNSEL DENIED. Case: 14-41375 Document: 00513470199 Page: 3 Date Filed: 04/19/2016