     Case: 10-41310   Document: 00511771876     Page: 1   Date Filed: 02/29/2012




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

                                                                   FILED
                                                                 February 29, 2012

                                  No. 10-41310                    Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee
v.

EDUARDO CARREON-IBARRA, also known as Negro,

                                            Defendant-Appellant



                  Appeal from the United States District Court
                       for the Southern District of Texas


Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
        Defendant-Appellant Eduardo Carreon-Ibarra appeals his conviction and
sentence on count 26 of a superseding indictment, which charged him with
possession of a firearm in furtherance of a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1)(A)(i), § 924(c)(1)(B)(ii), and § 924(c)(1)(C)(i) and (ii). He
primarily contends that his guilty plea to count 26 was not made knowingly and
voluntarily because he was not properly admonished regarding the direct
consequences of his plea. We agree; accordingly, we vacate Carreon-Ibarra’s
guilty plea as to count 26 and remand this case to the district court to allow him
to plead anew.
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                                 No. 10-41310

                                        I
     The Grand Jury for the Southern District of Texas filed a multi-count,
multi-defendant superseding indictment that charged Carreon-Ibarra with
various crimes he allegedly committed as part of his involvement with the
enforcement arm of a Mexican drug cartel. Carreon-Ibarra eventually pleaded
guilty, pursuant to a written plea agreement, to two counts of the
indictment—24 and 26.
     Count 24—titled attempted murder—alleged that Carreon-Ibarra

     and other co-conspirators . . . aiding and abetting each other, did
     travel in foreign commerce . . . and use a facility in interstate and
     foreign commerce . . . with the intent to commit a crime of violence
     to further an unlawful activity, that is, a business enterprise
     involving controlled substances . . . and thereafter intentionally and
     knowingly attempted to commit a crime of violence to further such
     unlawful activity [in violation of 18 U.S.C. §§ 1952(a)(2), (a)(3)(B)].

     Count 26 of the indictment alleged that Carreon-Ibarra and his
co-defendants,

     aiding and abetting each other, did knowingly and intentionally
     possess at least one firearm, to wit:
     a)    AR-15, .223 caliber machinegun, with an obliterated serial
           number;
     b)    MAK-90, 7.62X39mm caliber semi-automatic assault rifle,
           serial number 91784;
     c)    Glock, .40 caliber pistol, serial number FCM759; and
     d)    Smith and Wesson, 9mm caliber pistol, serial number
           TCL4868,
     in furtherance of a crime of violence . . . , that is Interstate Travel
     in Aid of Racketeering as charged in Count Twenty-Four . . . and a
     drug trafficking crime . . . , that is, Conspiracy to Possess with
     Intent to Distribute a Controlled Substance as charged in Count
     One of the Indictment.




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(emphasis added). Count 26 alleged violations of 18 U.S.C. § 924(c)(1)(A)(i)
(providing for a minimum of five years of imprisonment for possessing a generic
firearm), § 924(c)(1)(B)(ii) (providing for a term of imprisonment of not less than
thirty years for possession of a machinegun), and § 924(c)(1)(C)(i), (ii) (providing
penalties for second or subsequent convictions).
      The plea agreement stated that the maximum term of imprisonment for
count 24, a violation of § 1952(a)(2), was not more than twenty years. It
provided that the statutory range of imprisonment for count 26, a violation of §
924(c)(1)(A)(i) and (c)(1)(D)(2), would “include a consecutive mandatory
minimum term of imprisonment of five (5) years [and] imprisonment of not
more than Life.”     The plea agreement did not mention the machinegun
possession offense, § 924(c)(1)(B)(ii), or its thirty-year mandatory minimum term
of imprisonment.
      The plea agreement included an addendum containing a factual
statement, which, among other evidence tying Carreon-Ibarra to the crimes
alleged in counts 24 and 26, stated that Laredo police officers arrested Carreon-
Ibarra in Room 603 of a motel in possession of the keys to Rooms 603 and 602.
The statement noted that after Carreon-Ibarra consented to a search of the two
rooms the police found the two handguns identified in the indictment hidden in
Room 603, one under the mattress and one in the water tank of the toilet. In
Room 602, the police discovered the machinegun and the assault rifle identified
in the indictment hidden under the mattress.
      At rearraignment, the Government indicated that Carreon-Ibarra was
subject to (1) a statutory maximum term of imprisonment of twenty years on
count 24 and (2) a consecutive statutory minimum term of imprisonment of five
years up to a maximum term of life on count 26 for a violation of § 924(c)(1)(A)(i)
and (c)(1)(B)(ii). The district court then reiterated that in addition to whatever
sentence the court imposed on count 24, Carreon-Ibarra “would be receiving in

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                                  No. 10-41310

addition to that a minimum of five years, that is, whatever the court sentences
you to on Count 24, you will get plus a minimum of five years.” The court added
that it did not “know what you will actually get, but you need to make sure that
you understand that combined you’re looking at something over five years.”
Carreon-Ibarra declared that he understood and acknowledged that he had
signed the factual statement and attested to its truth after the Government read
it into the record. The district court found Carreon-Ibarra guilty of the charges
alleged in counts 24 and 26, ordered the preparation of a Pre-Sentencing Report
(“PSR”), and set the case for sentencing.
      The PSR calculated a recommended advisory guideline imprisonment
range on count 24 of 240 months, the statutorily authorized maximum sentence.
As for count 26, paragraph 56 of the PSR acknowledged that the district court
admonished Carreon-Ibarra of “the penalty provisions of 18 U.S.C. §
924(c)(1)(A)(i),” which provide for an imprisonment range of five years to life.
Nonetheless, the PSR stated that because “as reflected in Count Twenty-Six of
the Indictment, one of the firearms involved in the offense was a machinegun[,]
. . . . the defendant is subject to a 30 year custody term consecutive to the
custody term imposed in Count Twenty-Four.”
      Carreon-Ibarra filed objections to the PSR in the district court, challenging
paragraph 56. He contended that when he pleaded guilty to count 26 at
rearraignment, the district court admonished him that he only faced a term of
imprisonment of five years to life pursuant to § 924(c)(1)(A)(i) and did not
admonish him that he would be held responsible for possession of a machinegun.
In pleading guilty to count 26, Carreon-Ibarra asserted that he only intended to
accept responsibility for the two handguns located in Room 603, not for the
machinegun seized from Room 602. Although he acknowledged that he had a
key to room 602, he denied having any knowledge that a machinegun was in that
room. He also contended that the indictment did not allege that each defendant

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                                      No. 10-41310

referred to in count 26 possessed all of the firearms described in that count, but,
rather, only that each defendant “possessed at least one firearm in furtherance
of a crime of violence.”
      At sentencing, after Carreon-Ibarra’s counsel raised its objection to “the
applicability of the 30-year mandatory minimum sentence for the machinegun,”
the court acknowledged that it had admonished Carreon-Ibarra at the plea
hearing that he was subject to a five-year mandatory minimum sentence and a
sentence up to life imprisonment for count 26. However, the district court
opined that the five-year minimum admonishment did not render the plea
involuntary. The court stated that even if it sentenced Carreon-Ibarra for the
machinegun charge, the plea would remain voluntary because a thirty-year term
of imprisonment would be within the sentencing range announced at
rearraignment.1 Carreon-Ibarra’s attorney responded by saying that his client
had based his decision to plead guilty on the understanding that he faced a five-
year minimum sentence on count 26—that is, there was a possibility that he
could receive a sentence of less than thirty years—and that if he had known he
faced a thirty-year minimum he would rather have gone to trial. Counsel then
asked the court to enforce the plea agreement and consider a sentencing range

      1
          The court stated:

      [T]he admonishments that were done as a five to life to here for this. The
      30-years obviously would be within that five to life. The court can handle that
      one of two ways, obviously: The court can just say, well, within that five to life
      term of imprisonment, the court is electing this particular range, and it would
      still be within the range that the defendant was admonished to at the time of
      the plea. I don’t think that that is necessarily an issue that regards the
      voluntariness of the plea.
      ....
      So what the court is saying is that he was admonished to a term up from five
      to life. Obviously 30 years is within that range. Okay. Even if the court, and the
      court didn’t say you are subject to a 30-year mandatory year minimum. The
      court can select based upon all the information here, based upon consideration
      of the 3553 A factors, the court can select any term within that five to life term
      of imprisonment.

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                                        No. 10-41310

of five years to life imprisonment on count 26. The court appeared to grant
Carreon-Ibarra’s objection and rejected a thirty-year minimum sentence, stating
repeatedly that it would “consider the full range up from five to life.” Carreon-
Ibarra did not attempt to withdraw his plea.2
       The court declared that it would sentence Carreon-Ibarra to terms of
imprisonment within the range “provided by the statutes and the guidelines,”
sentencing him to a 240-month or twenty-year term of imprisonment on count
24, followed by a 480-month or forty-year consecutive term of imprisonment on
count 26. Carreon-Ibarra did not object to the court’s sentence. The district
court’s statement of reasons indicated that it was adopting the PSR, and its
judgment stated that Carreon-Ibarra was guilty of both possessing a generic
firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i), and
possessing a machinegun in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c)(1)(B)(ii). This appeal followed.3

       2
           The colloquy proceeded as follows:

       THE COURT: All right. The court can sentence him on this charge based on the
       plea that was entered to anything from five to life consecutive to the sentence
       imposed in connection with Count 24, and that is what the court will do.

       MR. J. E. PENA: I do understand that, Your Honor. However, his position is he
       thought that he would at least have a chance to get less than 30 years.

       THE COURT: That is what I’m saying is that I will consider the full range up
       from five to life.

       MR. J. E. PENA: I’m asking the court to enforce the plea agreement, Your
       Honor. His understanding was that--.

       THE COURT: Five to life? I'm considering five to life.

       MR. J. E. PENA: Very well, Your Honor.

       THE COURT: I’m not sure what else I can say, but I’m considering five to life.
       3
       Although Carreon-Ibarra’s plea agreement included a waiver-of-appeal provision, that
agreement cannot be enforced “to bar a claim that the waiver itself—or the plea agreement of

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                                       No. 10-41310

                                              II
       On appeal, Carreon-Ibarra contends that he did not make his guilty plea
on count 26 knowingly and voluntarily and requests that we vacate his guilty
plea as to that count of the indictment.4            He asserts that the district court
violated Federal Rule of Criminal Procedure 11 by failing to admonish him
regarding the proper mandatory minimum sentence for count 26. Although
Carreon-Ibarra acknowledges that the district court indicated that it would
consider the full sentencing range announced at rearraignment—five years to
life—when setting his sentence for count 26, he asserts that the court actually
sentenced Carreon-Ibarra for a violation of 18 U.S.C. § 924(c)(1)(B)(ii),
possession of a machinegun in furtherance of a drug trafficking crime, which
carries a thirty-year minimum term of imprisonment.
       The Government counters that Carreon-Ibarra waived any error in the
district court’s sentence because he acquiesced to the court’s decision to consider
a sentencing range of five years to life for the machinegun offense. Further, the
Government contends that the district court did not commit error because the
court ultimately considered the full sentencing range announced at
rearraignment when it sentenced Carreon-Ibarra for the machinegun offense.
                                              A
       Because Carreon-Ibarra objected to the district court’s Rule 11 error in his
objections to the PSR and at the sentencing hearing, we review his challenge
under the harmless error standard. United States v. Powell, 354 F.3d 362, 367
(5th Cir. 2003) (“When a defendant objects at the district court level to the


which it was a part—was unknowing or involuntary.” United States v. White, 307 F.3d 336,
343 (5th Cir. 2002).
       4
        Carreon-Ibarra also argues that the district court violated his right to due process by
accepting his guilty plea to the machinegun offense and sentencing him for that offense.
However, because we are vacating Carreon-Ibarra’s plea as involuntary, this additional
argument is moot.

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                                  No. 10-41310

court’s failure to comply with Rule 11 during the plea colloquy, this Court
reviews the challenge pursuant to the harmless error standard.”) (citing United
States v. Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en banc)).
      The Government asserts that Carreon-Ibarra waived his Rule 11 objection
by (1) failing to withdraw his guilty plea when the judge informed him at the
sentencing hearing that he was subject to a thirty-year minimum sentence and
(2) acquiescing to the district court’s remedy to the alleged error, that is,
considering the full sentencing range announced at rearraignment for count 26.
The Government’s arguments are unavailing.
      Carreon-Ibarra did not waive his Rule 11 objection because even at the
conclusion of sentencing he reasonably believed that he had only pleaded guilty
to the generic firearm offense, 18 U.S.C. § 924(c)(1)(A)(i). By repeatedly assuring
Carreon-Ibarra’s counsel at sentencing that it would “consider the full range up
from five to life” for count 26, the district court caused counsel to reasonably
believe that the court had granted his objection regarding the applicability of the
machinegun charge and its thirty-year minimum sentence. Thus, Carreon-
Ibarra did not withdraw his guilty plea at sentencing because the district court
led him to believe that it would sentence him under the properly admonished
generic firearm offense bearing a five-year minimum. When the district court
announced Carreon-Ibarra’s sentence under count 26, his counsel did not object
because the sentence was within the sentencing range announced at
rearraignment. But the district court’s subsequent judgment adjudged Carreon-
Ibarra guilty of the machinegun offense, revealing for the first time that the
court had not actually sustained his counsel’s objection and had sentenced him
for the machinegun offense.
      Accordingly, Carreon-Ibarra preserved error on his Rule 11 challenge
because (1) he properly objected to the applicability of the machinegun offense
and its thirty-year minimum sentence in response to the PSR and at the

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                                        No. 10-41310

sentencing hearing and (2) the district court’s statements at sentencing misled
him regarding whether the court was sentencing him for the machinegun
charge. The district court’s error was not revealed until after the end of the
sentencing hearing when the court rendered its written judgment; thus,
Carreon-Ibarra preserved his claim of error because he did “not have an
opportunity to object to” the court’s error. See FED. R. CRIM. P. 51(b) (“If a party
does not have an opportunity to object to a ruling or order, the absence of an
objection does not later prejudice that party.”).5
       Because Carreon-Ibarra preserved his claim that the district court failed
to comply with Rule 11, “we shall conduct a straightforward, two-question
‘harmless error’ analysis: (1) Did the sentencing court in fact vary from the
procedures required by Rule 11, and (2) if so, did such variance affect substantial
rights of the defendant?” Johnson, 1 F.3d at 298. “To determine whether an
error affects substantial rights, i.e., is harmful, the focus is on ‘whether the
defendant’s knowledge and comprehension of the full and correct information
would have been likely to affect his willingness to plead guilty.’” Powell, 354
F.3d at 367 (quoting Johnson, 1 F.3d at 302).
                                               B
       We first consider whether the district court erroneously varied from the
procedures required by Rule 11. Johnson, 1 F.3d at 298.
       Federal Rule of Criminal Procedure 11 “ensures that a guilty plea is
knowing and voluntary by requiring the district court to follow certain
procedures before accepting such a plea.” United States v. Reyes, 300 F.3d 555,
558 (5th Cir. 2002). Guilty pleas must be made intelligently and voluntarily



       5
        Carreon-Ibarra may have been able to preserve his claim of error post-judgment by
moving the district court to correct his sentence on the ground that it resulted from clear error
pursuant to Federal Rule of Criminal Procedure 35. However, the Government has not raised
this argument; thus, we need not address it.

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                                 No. 10-41310

because they involve the waiver of several constitutional rights. Id. (citing
Boykin v. Alabama, 395 U.S. 238, 242–44 (1969)). Rule 11 provides that
“[b]efore the court accepts a plea of guilty . . . . the court must inform the
defendant of, and determine that the defendant understands, . . . the nature of
each charge to which the defendant is pleading . . . [and] any mandatory
minimum penalty.” FED. R. CRIM. P. 11(b)(1)(G),(I).
      A district court commits Rule 11 error when accepting a guilty plea if it
fails to inform the defendant “accurately of the proper minimum sentence” that
will result from the plea. United States v. Williams, 277 F. App’x 365, 367 (5th
Cir. 2008).   The failure to properly admonish a defendant regarding the
applicable statutory minimum sentence that will result from a plea constitutes
error because it prevents the defendant from understanding the nature of the
charges to which he is pleading and the direct consequences of his plea. Id. at
366–67 (“Since the district court misleadingly conveyed the possibility of a
ten-year mandatory minimum, the defendant could not have understood the
nature of the charge to which he was pleading.”) (citing FED. R. CRIM. P.
11(b)(1)(G)); id. at 367 (“By failing to inform Williams accurately of the proper
minimum mandatory sentence, the district court was not clear about the direct
consequences of a plea.”) (citing United States v. Hernandez, 234 F.3d 252, 255
(5th Cir. 2000)); see United States v. Watch, 7 F.3d 422, 429 (5th Cir. 1993)
(same).
      Here, the district court advised Carreon-Ibarra at rearraignment that his
guilty plea to count 26 would subject him to a consecutive five-year mandatory
minimum sentence. But the court’s judgment reveals that it actually interpreted
Carreon-Ibarra’s plea to count 26 as an admission of guilt to the machine gun
offense, which carried a thirty-year mandatory minimum sentence. Accordingly,
the district court’s flawed admonishment “misled [Carreon-Ibarra] as to the
statutory minimum term of imprisonment to which he subjected himself by

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                                 No. 10-41310

pleading guilty and thereby amounted to a complete failure to address the
plea-consequences concern of Rule 11.” Watch, 7 F.3d at 429. In short, the
court’s failure to advise Carreon-Ibarra that his plea would subject him to a
thirty-year mandatory minimum sentence prevented him from understanding
the nature of the charges to which he was pleading—the machinegun
offense—and of the direct consequences of his plea—a thirty-year mandatory
minimum sentence. Williams, 277 F. App’x at 366-67; Watch, 7 F.3d at 429.
      First, the district court’s admonishment that count 26 would carry a five-
year minimum sentence could reasonably have caused Carreon-Ibarra not to
understand that he was pleading guilty to the machinegun offense, which would
subject him to that offense’s thirty-year minimum sentence. The extant record
when he entered his plea could have reinforced his belief that he was only
pleading guilty to the generic firearm offense. For instance, the indictment only
charged Carreon-Ibarra with possessing “at least one” of four firearms, only one
of which was a machinegun. Further, neither the plea agreement nor the factual
statement specified that Carreon-Ibarra intended to plead guilty to the
machinegun offense or mentioned the offense’s thirty-year minimum sentence.
Thus, by admonishing Carreon-Ibarra that he would face a five-year mandatory
minimum sentence for pleading guilty to count 26, the district court could have
caused Carreon-Ibarra to reasonably believe that he was not pleading guilty to
the machinegun charge.
      Second, despite the district court’s failure to inform Carreon-Ibarra at
rearraignment that his guilty plea to count 26 would subject him to a thirty-year
minimum sentence, the record reveals that the district court interpreted
Carreon-Ibarra’s guilty plea to count 26 as an admission of guilt to the
machinegun offense, 18 U.S.C. § 924(c)(1)(B)(ii).     For instance, the court’s
statement of reasons indicated that the court adopted the PSR and imposed a
mandatory minimum sentence, and the statement does not disavow the PSR’s

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                                       No. 10-41310

recommendation regarding the applicability of the machinegun charge and its
thirty-year minimum sentence. Further, the court’s judgment explicitly stated
that it found Carreon-Ibarra guilty of possessing a machinegun in furtherance
of a drug trafficking crime: “The defendant is adjudicated guilty of these
offenses: . . . 18 U.S.C. § 924(c)(1)(B)(ii), and 2.” Thus, even though the district
court’s improper admonishment could have caused Carreon-Ibarra to reasonably
believe that he had not pleaded guilty to the machinegun offense, the district
court adjudged him guilty of that offense.
       Accordingly, we conclude that the district court erred by accepting
Carreon-Ibarra’s guilty plea for possessing a machinegun in violation of 18
U.S.C. § 924(c)(1)(B)(ii).6 The court’s admonishment that Carreon-Ibarra’s plea
would only result in a five-year mandatory minimum sentence prevented him
from understanding the nature of the charges against him and the direct
consequences of his plea. Williams, 277 F. App’x at 366–67; Watch, 7 F.3d at
429.
                                               C
       Now that we have determined the district court erroneously varied from
the procedures required by Rule 11, we proceed to decide whether that error was
harmless. “To determine whether a Rule 11 error is harmless (i.e., whether the
error affects substantial rights), we focus on whether the defendant’s knowledge
and comprehension of the full and correct information would have been likely to
affect his willingness to plead guilty.” Johnson, 1 F.3d at 302. In other words,
we “examine the facts and circumstances of the . . . case to see if the district



       6
          We note the importance of the fact that the Supreme Court issued its opinion in
United States v. O’Brien, before sentencing in this case. 130 S. Ct. 2169 (2010). In O’Brien the
Court held that possession of a machinegun under 18 U.S.C. § 924(c)(1)(B)(ii) is an element
of an offense that must be charged in an indictment and proved to a jury beyond a reasonable
doubt, as opposed to a sentencing factor that can be proved to a jury by a preponderance of the
evidence. 130 S. Ct. at 2180.

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                                   No. 10-41310

court’s flawed compliance with . . . Rule 11 . . . may reasonably be viewed as
having been a material factor affecting [defendant]’s decision to plead guilty.”
Id. (alterations in original) (quoting United States v. Bachynsky, 934 F.2d 1349,
1360 (5th Cir. 1993) (en banc)).
       In Watch, we concluded “that because the district court failed to inform
Watch of the minimum sentence which might be imposed, Watch did not fully
understand the consequences of his plea, and his rights were therefore
substantially affected.” 7 F.3d at 429; see Williams, 277 F. App’x at 367 (holding,
under Watch, on plain error review, that a district court’s failure to “accurately
[inform a defendant] of the proper minimum mandatory sentence” affected the
defendant’s substantial rights). Accordingly, due to the district court’s failure
to admonish Carreon-Ibarra that his plea to count 26 would subject him to a
thirty-year minimum sentence, he did not fully understand the consequences of
his plea and his rights were therefore substantially affected. Watch, 7 F.3d at
429.
       The Government asserts that the improper admonishment did not affect
Carreon-Ibarra’s decision to plead guilty because the district court ultimately
considered the full imprisonment range announced at rearraignment—five-years
to life—when setting the sentence. We find its argument unpersuasive.
       Even if the district court actually did consider the full extent of the
sentencing range announced at rearraignment when setting Carreon-Ibarra’s
sentence for count 26, Carreon-Ibarra’s knowledge of the full consequences of his
plea would have been likely to affect his willingness to plead guilty. Namely,
with full knowledge that the district court would find him guilty of the
machinegun offense, Carreon-Ibarra could have reasonably thought that the
district court would feel constrained or influenced by the mandatory minimum
sentence for that offense. For instance, Carreon-Ibarra could have reasonably
concluded that his sentence would be affected by the district court’s belief that

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                                       No. 10-41310

it lacked authority to impose a sentence for the machinegun offense below the
statutory minimum for that offense. See United States v. Phillips, 382 F.3d 489,
498–99 (5th Cir. 2004) (holding that a district court may only impose a term of
imprisonment below a statutory minimum for a drug crime in limited
inapplicable circumstances). Similarly, Carreon-Ibarra could have determined
that even if the court did believe it could sentence Carreon-Ibarra to less than
thirty years for the machinegun offense, its weighing of the relevant sentencing
factors would be influenced by the fact that Congress created a thirty-year
mandatory minimum sentence for the underlying offense.
       In sum, we find that if Carreon-Ibarra knew before his plea hearing that
the district court would interpret his plea to count 26 as an admission of guilt to
the machinegun offense, it “would have been likely to affect his willingness to
plead guilty.” Johnson, 1 F.3d at 302.
                                              III
       We VACATE Carreon-Ibarra’s guilty plea as to count 26 only, and
REMAND this case to the district court to allow Carreon-Ibarra to plead anew
as to count 26.7




       7
         Neither party has argued that Carreon-Ibarra’s guilty plea or sentence as to count 24
depended on the validity of his plea to count 26. See United States v. Still, 102 F.3d 118, 123
(5th Cir. 1996).

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