     Case: 14-41375      Document: 00513470199         Page: 1    Date Filed: 04/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-41375
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 19, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 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 enterprise. 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 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-41375     Document: 00513470199     Page: 2   Date Filed: 04/19/2016


                                  No. 14-41375

pertains to his claims that counsel’s ineffectiveness 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 agreement 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 ineffective
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 his ineffective assistance of
counsel claims.      The Government further acknowledges that Delbosque
arguably has raised claims of ineffective assistance of counsel. In order to give
Delbosque’s defense counsel an opportunity to respond to Delbosque’s
allegations, the Government requests that the case be remanded to the district
court for an evidentiary 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 effective 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 merits of Delbosque’s
ineffective assistance of counsel claims.      See United States v. Villegas-
Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999). Accordingly, the district court’s



                                       2
    Case: 14-41375     Document: 00513470199     Page: 3   Date Filed: 04/19/2016


                                  No. 14-41375

judgment is vacated in part and the case is remanded for an evidentiary
hearing on the issues on which a COA was granted.             The Government’s
alternative motion for an extension of time to file an 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 APPOINTMENT OF COUNSEL DENIED.




                                        3
