         United States Court of Appeals
                    For the First Circuit

No. 04-1508

                   UNITED STATES OF AMERICA,

                           Appellee,

                              v.

                 FRANCISCO AQUINO-DE LA ROSA,

                     Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MAINE

       [Hon. John A. Woodcock, Jr., U.S. District Judge]



                            Before

                    Selya, Lynch and Lipez,
                        Circuit Judges.



          Randy Olen on brief for appellant.
          Paula D. Silsby, United States Attorney, and James L.
Burke, Assistant U.S. Attorney, on Memorandum in Support of
Summary Affirmance.



                         August 9, 2005
           Per    Curiam.      In   this    sentencing   appeal,    defendant

Francisco Aquino–De La Rosa challenges his sentence on the sole

ground that resentencing is required by United States v. Booker,

125 S. Ct. 738 (2005).          The government has moved for summary

affirmance on the grounds that defendant waived his right to appeal

in his plea agreement and that, in any event, the district court

did not commit plain error under Booker in sentencing defendant to

the bottom of the applicable guidelines range.           We deny the motion

for   summary    affirmance,   vacate      the   sentence,   and   remand   for

resentencing because, as discussed more fully below, we find the

appeal waiver to be unenforceable and conclude that defendant has

satisfied his burden, under United States v. Antonakopoulos, 399

F.3d 68 (1st Cir. 2005), of demonstrating a reasonable probability

that the district court would have imposed a lower sentence under

advisory guidelines, id. at 75.

           Defendant pleaded guilty to reentry after deportation

subsequent to a conviction for an aggravated felony, in violation

of 8 U.S.C. § 1326(a).      His plea agreement contained the following

waiver of appeal:

           Defendant is aware that Title 18, United
           States Code, Section 3742 affords a defendant
           the right to appeal the sentence imposed.
           Defendant is also aware that he may, in some
           circumstances, argue that his plea should be
           set aside, or his sentence be set aside or
           reduced, in a collateral challenge (such as,
           but not limited to a motion under 28 U.S.C. §
           2255).   Knowing that, Defendant waives the


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            right to appeal or to collaterally challenge
            the following:

                 A.    Defendant's guilty plea and any
                 other     aspect    of   Defendant's
                 conviction in the above-captioned
                 case;

                 B.   The adoption by the District
                 Court at sentencing of the positions
                 found in paragraph 3 above.1

That waiver was subject to the following exception:

            Defendant's waiver of rights to appeal and to
            bring collateral challenges shall not apply to
            appeals or challenges based on a right that
            has been newly recognized by the Supreme Court
            and made retroactively applicable to cases on
            collateral review.

            Relying   on    this    waiver,    the    government     argues    that

defendant   waived    his   right    to   appeal      his   sentence    on   Booker

grounds.    Without reaching the question of whether defendant's

Booker appeal falls within the scope of the waiver or, instead,

within its exception, we decline to enforce the waiver because its

terms were not clearly explained during the plea colloquy.                   United

States v. Teeter, 257 F.3d 14, 24 (1st Cir. 2001).

            Here, as in Teeter, the district court failed to call

defendant's     attention     to    the      appeal    waiver    and,     instead,

affirmatively    sought     and    obtained    confirmation     of     defendant's

understanding that he had an unqualified right to appeal his


     1
      The "positions found in paragraph 3" of the plea agreement
included the government's "agree[ment] not to oppose the
defendant's request to be sentenced at the bottom of the applicable
guidelines range."

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sentence.     Under those circumstances, enforcing the plea waiver

would work a "miscarriage of justice," id. at 26, especially since,

as discussed below, defendant's Booker appeal may well result in a

reduced sentence.

             Defendant concedes that his claim of Booker error was not

preserved and that, therefore, he is entitled only to plain error

review.      Because     defendant      was    sentenced     under   a   mandatory

guidelines system, the first two prongs of the plain error standard

have been met.      Antonakopoulos, 399 F.3d at 75.              In determining

whether the third and fourth prongs of that test have been met, the

court's "principal concern in these Booker 'pipeline' cases is with

the likelihood that the defendant would have received a lesser

sentence in a post-Booker regime of advisory guidelines."                   United

States v. Heldeman, 402 F.3d 220, 223-24 (1st Cir. 2005) (citing

Antonakopoulos, 399 F.3d at 81).                Where the sentencing judge

expressly indicates that the sentence mandated by the guidelines is

unduly harsh, the third and fourth prongs are satisfied as well.

Antonakopoulos,     399    F.3d   at     81;    see   also   United      States   v.

Wilkerson, 411 F.3d 1, 10 (1st Cir. 2005); United States v. Lewis,

406 F.3d 11, 21-22 (1st Cir. 2005); United States v. Morin, 403

F.3d   41,   42   (1st   Cir.   2005)    (per    curiam);     United     States   v.

MacKinnon, 401 F.3d 8, 11 (1st Cir. 2005).




                                        -5-
           The   judge's      comments       here2   indicate     a    reasonable

probability that he would have imposed a more favorable sentence

under    advisory    guidelines.3            Accordingly,    we       remand   for

resentencing.       In   so   doing,   we    intimate   no   view     on   whether

defendant should receive a lower sentence on remand or on the

reasonableness of his previous sentence or any revised sentence.

See Heldeman, 402 F.3d at 224.

           The motion for summary affirmance is denied, but the

government's alternative request that its motion and supporting

memorandum be treated as the brief for the appellee is allowed.

The sentence is vacated, and the case is remanded to the district

court.   See Local R. 27(c).



     2
      Before imposing a sentence at the bottom of the applicable
guidelines range, the judge said to the defendant,

           You seem to me to be a very nice man, and I am
           sorry that I have to put you in prison for so
           long. . . . You don't belong here in prison.
           You belong with your friends; and you belong
           in your country.

                I know that you come here for economic
           opportunity, but you have a prior drug
           conviction, and people with prior drug
           convictions who aren't authorized to enter the
           country have to spend a lot of time in jail
           when they get caught, and you've been caught.
     3
      The fact that defendant agreed to seek a sentence at the
bottom of the applicable guidelines range and did so at sentencing
does not bar his present request for resentencing under Booker, as
the government contends.      Rather, like the district court,
defendant understandably believed that that was the lowest sentence
the court could legally impose.

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