           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                                   FILED
                                                                              November 18, 2008
                                        No. 07-50072
                                      Summary Calendar                      Charles R. Fulbruge III
                                                                                    Clerk

UNITED STATES OF AMERICA

                                                      Plaintiff-Appellee

v.

JEFFREY MARK HICKS

                                                      Defendant-Appellant


                     Appeal from the United States District Court
                          for the Western District of Texas
                               USDC No. 1:05-CR-223-1


Before HIGGIBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Jeffrey Mark Hicks appeals his guilty plea conviction for conspiracy to
possess with intent to distribute more than five kilograms of cocaine. Hicks
argues that his appeal is not barred by his appeal waiver and that the district
court erred in denying his motion to withdraw his guilty plea.
       The appeal waiver signed by Hicks waived Hicks’s right to appeal his
sentence. Acknowledging this, the Government has invoked the waiver as to
sentencing challenges; it does not seek to enforce any waiver regarding



       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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. 07-50072

challenges to Hicks’s conviction. See United States v. Acquaye, 452 F.3d 380,
381–82 (5th Cir. 2006). Accordingly, we address Hicks’s contention that the
district court erred by denying the motion to withdraw his guilty plea.
      While this appeal was pending, we held in United States v. Arami, 536
F.3d 479 (5th Cir. 2008), that a defendant has an absolute right under Federal
Rule of Criminal Procedure 11(d)(1) to withdraw a guilty plea before the plea is
accepted by the district court. Because Hicks moved to withdraw his guilty plea
prior to the time that it was accepted by the district court, he had an absolute
right to withdraw his plea. Id. at 483; Fed. R. Crim. P. 11(d)(1). Accordingly,
the district court erred in denying the motion to withdraw the guilty plea.
      The Government contends that Hicks waived any argument that his right
to withdraw was absolute under Federal Rule of Criminal Procedure 11(d)(1) by
conceding in the district court and on appeal that he did not have such a right.
The record does not reflect that Hicks knew of the absolute right of withdrawal
under Federal Rule of Criminal Procedure 11(d)(1), or that he intentionally
relinquished this right. Therefore, Hicks did not waive this argument. United
States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). We reverse the district
court’s judgment, and we remand the case with instructions to allow Hicks to
withdraw his guilty plea and to proceed accordingly.
      REVERSED AND REMANDED.




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