                                                       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.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. 1:04-CR-601-1
                       --------------------

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this opinion should not be published and is not precedent except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