                                                                [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________                     FILED
                                                              U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                                 No. 05-12315                       January 3, 2006
                             Non-Argument Calendar               THOMAS K. KAHN
                           ________________________                  CLERK


                        D. C. Docket No. 04-10037-CR-SH

UNITED STATES OF AMERICA,
                                                            Plaintiff-Appellee,

                                        versus

GERMAN JESUS RUBI-PEREZ,
                                                            Defendant-Appellant.
                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          _________________________
                                 (January 3, 2006)


Before MARCUS, WILSON and RONEY, Circuit Judges.

PER CURIAM:

      German Jesus Rubi-Perez appeals his conviction and 30-month sentence

based upon a guilty plea for bringing aliens into the United States in violation of

8 U.S.C. § 1324(a)(2)(A), and for attempted reentry after an order of deportation in

violation of 8 U.S.C. § 1326(a)(1). Although the point was not argued in the
briefs, it is apparent that Rubi-Perez’s guilty plea was not knowingly and

intelligently entered. Following the precedent in United States v. Pierre, 120 F.3d

1153, 1155 (11th Cir. 1997), we vacate his conviction and sentence and remand to

the district court for Rubi-Perez to have the opportunity to plead anew.

      On November 24, 2004, Rubi-Perez moved to dismiss the indictment based

on the Fifth and Sixth Amendment, as well as Federal Rule of Criminal Procedure

Rule 5(a)(1)(B). H argued that: (1) the government repatriated all potential

defense witnesses before his attorney had an opportunity to interview them; and

(2) he was denied a speedy arraignment and assistance of counsel, when the

government detained him on a boat for 13 days between his arrest and his initial

appearance in court.

      On January 21, 2005, prior to a hearing on that motion, Rubi-Perez and his

court-appointed defense attorney signed a written plea agreement offered by the

government. Then on January 24, 2005, during a hearing at which the district

court would deny the motion to dismiss, Rubi-Perez’s counsel stated, “we have a

Plea Agreement, and . . . if the Court would allow us to reserve this issue for

appeal, Mr. Rubi-Perez will be entering a plea this Friday.” After reiterating his

argument for dismissing the indictment, counsel again stated, “[a]nd depending on

the Court’s ruling, we also would like to be able to plead Mr. Rubi while



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preserving that issue for any appellate decisions in the future.” The district court

stated, “[o]f course, I will allow you to reserve and preserve that issue.” The

government counsel remained silent concerning the plea agreement during the

hearing, and signed the agreement the day after the hearing on January 25, 1005.

      The agreement neither referenced Rubi-Perez’s intent to preserve the issues

for appeal, nor that he was making a conditional plea. Nor did either the

government or the district court refer to the prior colloquy at the Federal Rule of

Criminal Procedure Rule 11 hearing, at which the district court found Rubi-Perez’s

guilty plea was knowingly, intelligently, and voluntarily entered.

      Although the brief for Rubi-Perez argues only the merits of his motion to

dismiss, and a United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005) issue,

the government brief does not address the merits of Fifth and Sixth Amendment

claims, but argues only that he waived the right to appeal these issues because he

entered an unconditional guilty plea agreement with the government, and the

government had not consented to a conditional plea.

      The Court in United States v. Pierre, 120 F.3d 1153 (11th Cir. 1997)

addressed a similar situation. Defense counsel had made a substantially similar

statement as Rubi-Perez’s counsel during a hearing on a pending motion to dismiss

the indictment as follows, “As long as my client is assured by the court, which you



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have done, that these issues are protected for purposes of an appeal, [Pierre] may

be willing to wish to do that in the future. But for the purposes of trial, he is

entering a plea. It is in his best interest at this time.” 120 F.3d at 1155. We held

that it was reversible error for the district court to accept the guilty plea “only on

the reasonable [but mistaken] belief that [a defendant] had preserved the speedy

trial issues for appeal” because “as a matter of law” it was not knowing and

voluntary. Pierre, 120 F.3d at 1156.

      Both Rubi-Perez and the district court were proceeding forward with the

guilty plea agreement with the reasonable belief that the issues raised in the motion

to dismiss the indictment were preserved for appeal, the court having previously

stated “of course, I allow you to reserve that issue.” As the government argues,

however, since the written plea agreement fails to expressly preserve this issue for

appeal, the government did not consent in the plea agreement. The government’s

silence when the court gave its consent did not amount to government consent.

      Following Pierre, Rubi-Perez’s conviction and sentence are vacated, and the

case is remanded to the district court for him to plead anew. See Pierre, 120 F.3d

at 1157 (vacating conviction and sentence, declining to reach remaining issues on

appeal, and noting that the defendant must be “offered the opportunity to plead

anew”).



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       We express no opinion as to the merits of the issues raised in Rubi-Perez’s

initial brief.

       VACATED AND REMANDED.




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