                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4962



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JUAN LUIS MARTINEZ-MARTINEZ, a/k/a Jose Lopez,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00300)


Submitted:   June 15, 2007                 Decided:   July 12, 2007


Before MICHAEL, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Roderick M. Wright, Jr., WRIGHT LAW FIRM OF CHARLOTTE, PLLC,
Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert,
United States Attorney, Thomas Tullidge Cullen, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Juan    Luis     Martinez-Martinez           pled    guilty    to   illegal

reentry of a deported alien, 8 U.S.C. § 1326(a), (b)(2) (2000), and

was   sentenced        to   a   term      of    eighty-five     months     imprisonment.

Martinez-Martinez           contends       on    appeal      that    the   sixteen-level

enhancement applied by the district court under U.S. Sentencing

Guidelines Manual § 2L1.2(b)(2)(A) (2005), for a prior felony

firearms conviction was inconsistent with a stipulation in his plea

agreement, and the enhancement was not properly applied in his

case.       We affirm.

               Paragraph 5 of the plea agreement provided that “the

Court has the final discretion to impose any sentence up to the

statutory maximum for each count,” and that “[t]he defendant

further understands that no recommendations or agreements by the

United States are binding upon the Court.”                         Paragraph 6 provided

that,       pursuant   to     Fed.   R.    Crim.       P.   11(c)(1)(B),     the   parties

stipulated and agreed that the applicable base offense level was 8,

under USSG § 2L1.2(a), and an 8-level enhancement for a prior

aggravated felony conviction would be applied under subsection

(b)(1)(C) “if probation and the Court find this adjustment legally

appropriate,” resulting in an offense level of 16.*                        Paragraph 6(c)

stated that Martinez-Martinez might receive an adjustment for

        *
      An agreement by the government under Rule 11(c)(1)(B) to
“recommend, or agree not to oppose the defendant’s request, that a
particular sentence is appropriate or that a particular . . .
sentencing factor does or does not apply” is not binding on the
sentencing court. An agreement under Rule 11(c)(1)(C) is binding
on the court once the plea agreement is accepted.

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acceptance of responsibility, but that “the defendant understands

that any reduction in offense level is ultimately for the Court’s

determination.”    Paragraph 6(f) stated that “[t]he parties agree

that no other enhancements or reductions apply.”           At the Rule 11

hearing, both the government attorney and defense counsel discussed

the stipulation concerning the eight-level enhancement.

            Despite the parties’ stipulation, the probation officer

recommended a sixteen-level enhancement for Martinez-Martinez’s

1994 Texas conviction for possession of a sawed-off shotgun, under

§ 2L1.2(b)(1)(A)(ii) (prior crime of violence), and (iii) (prior

firearms offense).    Martinez-Martinez objected that the terms of

his plea agreement did not give the district court discretion to

vary from the stipulated guideline calculation once the plea was

accepted, and that a sixteen-level enhancement would render his

plea agreement void.      Martinez-Martinez also argued that the

sixteen-level   enhancement   should     not   apply   because   the   prior

conviction was a juvenile conviction.            Under Application Note

1(A)(iv), no enhancement under § 2L1.2(b)(1) may be applied “to a

conviction for an offense committed before the defendant was

eighteen years of age unless such conviction is classified as an

adult conviction under the laws of the jurisdiction in which the

defendant was convicted.”     Martinez-Martinez pointed out that the

1994 arrest report stated that Martinez-Martinez turned over to the

Hidalgo Police Department for arrest       “due to the fact that he was

a minor.”     However, after reviewing the Texas indictment and

judgment, the district court determined that Martinez-Martinez was

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prosecuted and sentenced as an adult in the Texas criminal justice

system.

            On appeal, to the extent that Martinez-Martinez maintains

that   he   was   misinformed    about    the   non-binding   nature    of   the

stipulation at the Rule 11 hearing, his claim is reviewed for plain

error because he did not seek to withdraw his guilty plea in the

district court.      United States v. Martinez, 277 F.3d 517, 523 (4th

Cir. 2002).       The plea agreement clearly stated that the parties’

stipulation was made pursuant to Rule 11(c)(1)(B).             Therefore, it

was not binding on the district court and the court did not plainly

err in so finding.        The court was free to adopt the probation

officer’s recommendation for a sixteen-level enhancement without

violating the terms of the agreement.

            The    district     court’s   determination   that    the    prior

conviction was an adult conviction is a legal decision that is

reviewed de novo.      United States v. Mason, 284 F.3d 555, 558 (4th

Cir. 2002).       Martinez-Martinez relies on the fact that he was

seventeen at the time of the 1994 offense, pointing out that, in

the U.S. Customs report concerning the arrest, the Customs agent

was advised by his supervisor that Martinez-Martinez should be

turned over to the local police because he was a minor.

            However, even though the federal agents may have regarded

Martinez-Martinez as a minor, Texas law treats a seventeen-year-old

as an adult.       See Tex. Family Code § 51.02 (Vernon 2007) (giving

juvenile court jurisdiction over persons under seventeen years

old); Benavidez v. State, 655 S.W.2d 233, 235 (Tex. Ct. App. 1983)

                                     - 4 -
(seventeen-year-olds are tried as adults in Texas).          We conclude

that the enhancement was properly applied.

          Accordingly,   we   affirm    the   sentence   imposed    by   the

district court.   We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.


                                                                   AFFIRMED




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