                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-5258



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JOSE ALCANTAR SALDANA, a/k/a Javier Gonzalez
Sanchez,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (CR-05-59)


Submitted:   June 26, 2006                 Decided:   July 13, 2006


Before WILLIAMS and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Pili L. Fleming, LAW OFFICES OF PILI FLEMING, P.L.L.C., Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, D. Scott Broyles, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Jose Alcantar Saldana pled guilty to illegal reentry, 8

U.S.C. § 1326(a), (b)(2) (2000), and received a sentence of twenty-

four months imprisonment.         Saldana appeals his sentence, arguing

that the district court erred in accepting his guilty plea but

refusing to honor a stipulation in his plea agreement that a four-

level    enhancement      under   U.S.    Sentencing      Guidelines   Manual

§ 2L1.2(b)(1)(D) (2004) for prior deportation after a felony

conviction would not be applied.          We affirm.

            At the guilty plea hearing conducted according to Rule

11, Federal Rules of Criminal Procedure, neither defense counsel

nor the government informed the district court that Saldana’s plea

agreement contained the stipulation at issue.              During the guilty

plea colloquy, moreover, Saldana answered in the affirmative when

the court asked whether he understood that he could not withdraw

his guilty plea if the sentence was more severe than he expected or

the     court    did     not   accept     the      government’s   sentencing

recommendation.        In addition, paragraph 4 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.”

            In   the    presentence      report,    the   probation    officer

calculated Saldana’s offense level and advisory guideline range


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without the four-level enhancement, but noted that Saldana had

previously been deported after a felony conviction and only the

parties’ stipulation that no enhancements from Chapters 2 through

5 would apply precluded application of the enhancement.                At the

sentencing hearing, the district court determined that the four-

level enhancement under § 2L1.2(b)(1)(D) applied and stated that,

under United States v. Booker, 543 U.S. 220 (2005), it had an

obligation to determine accurately the applicable guideline range.

The court noted Saldana’s objection.

           On   appeal,    Saldana    argues   that   the   district    court

committed reversible error by accepting his plea agreement and then

disregarding the parties’ stipulation that the § 2L1.2(b)(1)(D)

enhancement would not be applied.        He contends that the agreement

was of the type specified in Rule 11(c)(1)(C), which is binding on

the district court once the agreement is accepted.                  Thus, he

argues, the district court violated Rule 11 by rejecting the

agreement at the sentencing hearing, and imposing a sentence that

was not in accord with the terms of the agreement.                Contrary to

Saldana’s assertion in his brief, the district court did not

explicitly accept the plea agreement at the Rule 11 hearing,

although   it   accepted   Saldana’s    guilty   plea.      The    government

contends that the reference to Rule 11(c)(1)(C) was a typographical

error and that the parties understood the agreement to be of the




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type specified in Rule 11(b)(1)(B), as evidenced by the Rule 11

colloquy.

             Because Saldana did not move in the district court to

withdraw his guilty plea, his challenge to the adequacy of the Rule

11 hearing is reviewed for plain error. United States v. Martinez,

277 F.3d 517, 525 (4th Cir. 2002).        Rule 11(c)(1) provides for

three types of plea agreements.          Under Rule 11(c)(1)(A), the

government agrees that it will not bring, or move to dismiss, other

charges. Under subsection (c)(1)(B), the government agrees to

recommend, or not oppose defendant’s request that a particular

sentence or range is appropriate, or that a particular guideline

provision or sentencing factor does or does not apply.            The

subsection specifies that such a recommendation is not binding on

the court.    Under subsection (c)(1)(C), the government agrees that

a specific sentence or range is appropriate, or that a particular

guideline provision or sentencing factor does not apply.         This

subsection specifies that such a recommendation binds the court

once the court accepts the plea agreement.

             Rule 11(c)(3) provides that, when a plea agreement “is of

the type specified in Rule 11(c)(1)(A) or (C), the court may accept

the agreement, reject it, or defer a decision until the court has

reviewed the presentence report.”     When the agreement is the type

specified in subsection (c)(1)(B), “the court must advise the

defendant that [he] has no right to withdraw the plea if the court


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does not follow the recommendation or request.”                   The court gave

Saldana the latter advisement at the Rule 11 hearing.

             Saldana’s plea agreement was never clearly identified as

either   a   “type   B”    or    a    “type    C”   agreement.      Although    both

subsections were referenced in paragraph 5, neither the government

nor the defendant informed the court that there was an agreement

under    either      subsection         concerning      the   §     2L1.2(b)(1)(D)

enhancement.      However, the court advised Saldana that he could not

withdraw his guilty plea if the sentence was more severe than

expected or if the court did not accept the government’s sentencing

recommendation, a warning required by Rule 11(c)(3)(B) for an

agreement entered under Rule 11(c)(1)(B).

             We   conclude       that    the   court    correctly     treated    the

agreement    as   containing         nonbinding     recommendations    under    Rule

11(c)(1)(B), first, because the statements of the parties and the

court at the Rule 11 hearing indicated that the agreement was

understood that way and, consequently, belie Saldana’s contention

on appeal that the agreement was intended to be binding on the

court.   See United States v. Davidson, 409 F.3d 304, 311 (6th Cir.

2005)    (concluding      that    plea    agreement     was   governed    by    Rule

11(c)(1)(B) where agreement silent on this point and statements of

both government and court at rearrangement indicated a belief that

agreement was nonbinding).




                                         - 5 -
            In addition, under USSG § 6B1.4(d), stipulations are not

binding on the court.       Davidson, 409 F.3d at 311; United States v.

Ingles, 408 F.3d 405, 407 n.2 (8th Cir. 2005); USSG § 6B1.4,

comment.    Finally, had the court been aware that it was dealing

with a Rule 11(c)(1)(C) agreement containing a binding stipulation

or recommendation, it would have been obligated under Rule 11(c)(3)

to advise Saldana that it had accepted, rejected, or deferred a

decision about the agreement intended to be binding on the court.

That the court did not do so is further evidence that the parties

and the court viewed the agreement as a nonbinding agreement under

Rule 11(b)(1)(B).     Davidson, 409 F.3d at 311.

            Therefore, Saldana has not shown any Rule 11 violation.

Further, we conclude that the court did not reject the agreement or

violate    its   terms.     At   sentencing,   the   court   exercised   its

discretion to make the final determination as to the offense level,

as provided in paragraph 4 of the agreement.             Saldana did not

dispute    the   district   court’s   determination    that,   without   the

restriction of the stipulation, the enhancement applied.

            We therefore 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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