                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 October 26, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 04-40675
                           Summary Calendar



UNITED STATES OF AMERICA

                      Plaintiff - Appellee

     v.

LUIS ANGEL CUELLAR

                      Defendant - Appellant

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. 1:03-CR-707-2
                         --------------------

Before KING, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.

PER CURIAM:*

     Luis Angel Cuellar appeals the sentence he received after he

pleaded guilty pursuant to a written agreement to conspiring to

possess with intent to distribute more than a hundred kilograms

of marijuana.    He also appeals the criminal forfeiture of his

residence.

     The Government argues that because Cuellar explicitly agreed

to waive appeal of his sentence except a sentence imposed above

the statutory maximum or an upward departure, he has waived the

     *
       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this opinion should not be published and is not precedent except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. 04-40675
                                -2-

instant appeal of his sentence.    Cuellar’s appeal waiver was

rendered not knowing and voluntary when the district court

advised Cuellar at his rearraignment hearing that Cuellar could

appeal an “illegal sentence.”     See United States v. McKinney, 406

F.3d 744, 746 (5th Cir. 2005); 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); FED. R. CRIM. P. 11(b)(1)(N).

Therefore, the appeal waiver does not bar the instant appeal.

     Cuellar argues that the district court misapplied U.S.S.G.

§ 3B1.4 because a preponderance of the evidence fails to show

that he used a person under the age of 18 to commit his offense

or to avoid being caught in committing his offense.    The

Government agrees, candidly admitting that the enhancement was

not warranted because § 3B1.4 requires affirmative action on the

part of the defendant to involve the minor and it had no evidence

that Cuellar was actually involved in using the children.

     Because Cuellar objected to the enhancement in the district

court, the district court’s interpretation and application of

U.S.S.G. § 3B1.4 is reviewed de novo, and its factual findings

are reviewed for clear error.     See United States v. Villanueva,

408 F.3d 193, 203 n.9 (5th Cir. 2005)(post Booker, same standard

of review applies), petition for cert. filed (July 26, 2005) (No.

05-5580); United States v. Holmes, 406 F.3d 337, 363 (5th Cir.

2005), petition for cert. filed (July 1, 2005) (No. 05-41738).

“A factual finding is not clearly erroneous as long as it is
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                                  -3-

plausible in light of the record as a whole.”    Holmes, 406 F.3d

at 363 (internal quotation marks and citation omitted).

     Section 3B1.4 provides for a two-level increase in the base

offense level: “If the defendant used or attempted to use a

person less than eighteen years of age to commit the offense or

assist in avoiding detection. . . .”    U.S.S.G. § 3B1.4.

Commentary to the guideline states: “‘Used or attempted to use’

includes directing, commanding, encouraging, intimidating,

counseling, training, procuring, recruiting, or soliciting.”     Id.

at comment. (n.1).

     The Presentence Report (PSR) stated that Cuellar was present

at a meeting where a plan was devised that included bringing

along two 13 year olds in a vehicle that carried marijuana owned

by Cuellar.    The PSR, however, did not attribute any affirmative

act by Cuellar to involve the children, and the Government

candidly admits that it is “hard pressed” to present any evidence

establishing that Cuellar had anything to do with the children’s

involvement.   The district court therefore erred in applying the

§ 3B1.4 enhancement.   The sentence is VACATED, and the case

REMANDED for resentencing.

     Because, under United States v. Booker, 125 S. Ct. 738

(2005), the district court will not be bound by the Sentencing

Guidelines on remand, and could impose an altogether different

sentence, we need not address Cuellar’s argument that the

district court erred when it computed his base offense level
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                                -4-

using relevant conduct.   See United States v. Akpan, 407 F.3d

360, 377 n.62 (5th Cir. 2005).

     Cuellar argues that a preponderance of the evidence did not

support the criminal forfeiture of his residence.   Our review of

the evidence convinces us that there was ample admissible

evidence that property was acquired during the period of the drug

conspiracy for which there was no likely source for such property

other than proceeds from the drug conspiracy.   See 21 U.S.C.

§ 853(d).   Cuellar failed to rebut the presumption that the

property is therefore subject to forfeiture under § 853(a).

     Accordingly, in light of the foregoing, we affirm the

guilty-plea conviction and criminal forfeiture but vacate the

sentence and remand for resentencing.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.
