United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT September 29, 2005

Charles R. Fulbruge III Clerk No. 04-41438 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE GILBERTO NAVARRETE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-413-ALL --------------------

Before JOLLY, JONES, and OWEN, Circuit Judges.

PER CURIAM:*

Jose Gilbert Navarrete appeals the 40-month sentence imposed

by the district court following his guilty-plea conviction for

illegally reentering the United States, in violation of

. The Government seeks to enforce the waiver-of-appeal

provision of Navarrete’s plea agreement.

In his plea agreement, Navarrete waived, inter alia, “the

right to appeal the sentence imposed or the manner in which it

was determined,” except for a sentence above the statutory

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41438 -2-

maximum or an upward departure from the applicable Guidelines

range. Navarrete contends that this waiver provision is not

enforceable because, at his rearraignment, the magistrate judge

incorrectly told him that he retained the right to appeal “a

sentence that is imposed illegally.” We agree. Because the

magistrate judge inaccurately described the waiver provision,

Navarrete’s waiver cannot be deemed knowing and voluntary with

respect to “a sentence that is imposed illegally.” See FED. R.

CRIM. P. 11(b)(1)(N); United States v. Robinson,

(5th Cir. 1999).

Navarrete argues that the district court erred in sentencing

him under pursuant to a mandatory application of the Sentencing

Guidelines. See United States v. Booker,

(2005). He concedes that he did not raise this issue in the

district court, and that review is therefore for plain error.

Navarrete contends, however, that he need not show prejudice

because the error is structural and because prejudice should be

presumed.

This court has rejected the contention that the imposition

of sentence under a mandatory application of the Sentencing

Guidelines is structural or is presumptively prejudicial. United

States v. Malveaux,

, 560 n.9 (5th Cir. 2005),

petition for cert. filed (July 11, 2005) (No. 05-5297). Because

Navarrete did not raise the issue in the district court, he must

demonstrate plain error, which requires him to establish that No. 04-41438 -3-

(1) there is an error; (2) that is clear or obvious; and (3) that

affects his substantial rights. See United States v. Olano,

(1993). If these criteria are met, this

court has the authority correct the error, but is not required to

do so. See

.

Here, “there is no indication in the record from the

sentencing judge’s remarks or otherwise that gives us any clue as

to whether she would have reached a different conclusion” as to

Navarrete’s sentence if sentencing under an advisory guidelines

system. See United States v. Mares,

(5th Cir.

2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).

Accordingly, Navarrete cannot establish plain error. The

judgment of the district court is AFFIRMED.