                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 00-50005
                         _____________________



UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                  versus

LEONEL CRUZ-BARCENA,

                                             Defendant-Appellant.
_________________________________________________________________

      Appeal from the United States District Court for the
                    Western District of Texas
                     USDC No. DR-99-CR-615-3
_________________________________________________________________
                          July 13, 2000

Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Leonel     Cruz-Barcena   was   arrested   while    driving   a   truck

carrying illegal aliens across the Texas border. He reached a plea

agreement with prosecutors that waived his right to appeal.               At

sentencing, defense counsel moved for a three-level reduction under

the sentencing guidelines, alleging that the offense was committed

for reasons other than profit.         The district court denied the

motion,   but   later   made   statements   suggesting    that   the   court


     *
      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this opinion should not be published and is not precedent except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.
believed appeal was still available.             Neither side reminded the

district court of the plea agreement.            Cruz-Barcena now appeals.

                                      I

     Border agents arrested Cruz-Barcena, an illegal alien, as he

was driving a pickup truck carrying 16 other illegal aliens.                      Two

of   the   aliens   stated   they     were     to     pay    $1,200   for    their

transportation from Mexico to Fort Worth, Texas.                The agents also

questioned Cruz-Barcena, who told them that he had arranged to

drive the smuggling vehicle rather than pay the smuggling fee.

     The prosecutors and Cruz-Barcena negotiated a standard plea

agreement, which Cruz-Barcena signed on September 29, 1999.                  Cruz-

Barcena pled guilty to willful transportation of illegal aliens

under 8 U.S.C. § 1324(a)(1)(A)(ii) & (B)(I).                   As part of the

agreement, he specifically waived his right to appeal his sentence.

     During the sentencing hearing on December 17, 1999, Cruz-

Barcena’s lawyer moved for a three-level sentence reduction under

U.S.S.G. § 2L1.1(b)(1), which provides for such a reduction when

the offense was committed for a reason other than profit.                         He

presented no evidence on this point, however.               Though the district

court denied the motion, the judge did say, “I encourage the

defendant’s   counsel   to   appeal       so   that   this    question      may   be

thoroughly thrashed out in the Fifth Circuit.”                   Neither party

reminded the judge about Cruz-Barcena’s waiver.




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     The court then proceeded to allocution.   At that point, Cruz-

Barcena asserted that he had believed he was going to need to pay

for being smuggled once he arrived in Fort Worth.     Though Cruz-

Barcena was not subject to cross-examination on this testimony,

which contradicted his earlier statements to the agents, the

district court issued a finding of fact that Cruz-Barcena had not

had a profit motive in driving the truck.

     Cruz-Barcena then filed an appeal.

                                II

                                A

     The question before us is whether the statements by the

district court that suggested that Cruz-Barcena had a right to

appeal effectively voided the provision in the plea agreement

waiving his right to appeal, on grounds that the courtroom colloquy

misled Cruz-Barcena and thereby rendered the waiver uninformed. We

review whether such a waiver in a plea agreement is voluntary and

informed de novo.   United States v. Melancon, 972 F.2d 566, 567

(5th Cir. 1992).

                               (B)

     Melancon involved a situation analogous to the one before us:

a defendant who signed a plea agreement waiving his right to

appeal, but who then sought to appeal after the district court

misspoke at later proceedings suggesting that appeal was available.




                                3
In that case, we held that these misstatements, made several months

after the signature of the plea agreement, could not render that

earlier agreement unknowing.

     Like the defendant in Melancon, Cruz-Barcena signed the plea

agreement several months before the district court’s misstatement.

Thus, the district court’s mistake did not affect Cruz-Barcena’s

earlier decision to sign the plea agreement and to waive his right

to appeal.   That waiver was therefore informed.

                                III

     For the reasons stated herein, Cruz-Barcena’s appeal is

                                                   D I S M I S S E D.




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