(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-8465
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
GERONIMO ANTONIO PONCE-SANTOYO, Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
EP 92 CR 165
June 21, 1993
Before KING, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
PER CURIAM:*
This is a direct appeal from a plea of guilty in which the
defendant contends he was harmed by a failure of the district court
to advise him that the court must consider any applicable guideline
in imposing sentence. On the facts of this case we reject the
government's argument that the conceded error was harmless, vacate
the conviction and remand to allow defendant to plead again.

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2
I.
Defendant Geronimo Antonio Ponce-Santoyo is a citizen of
Mexico. Before his 1987 conviction on drug charges in Texas state
court, he had lived in the United States since 1977 as a permanent
resident alien. This felony conviction led the INS to deport him
on January 29, 1988. Ponce reentered the United States the next
day, however, and remained in the country undetected until December
11, 1991, when he was arrested for heroin possession and placed in
the El Paso Detention Center. A Border Patrol agent located Ponce
in jail on January 4, 1992.
On April 15, 1992, Ponce was charged under 8 U.S.C. § 1326
(a), which prohibits previously deported aliens from willfully and
unlawfully reentering the United States without the consent of the
Attorney General. Notice of Penalty Enhancement was attached to
the indictment, alleging that Ponce's May 29, 1988 deportation
followed a felony conviction for the delivery of heroin. This
enhancement increased the possible maximum punishment from two to
fifteen years imprisonment. § 1326 (b) (2).
On July 13, 1992, Ponce moved to dismiss the enhancement on
grounds that this provision had been enacted after his deportation
and subjected him to substantially more prison time than he had
been advised at the time of his deportation. The district court
denied this motion, stating:
Well, I'm not unsympathetic with you, you understand. I
don't agree with the sentencing framework that's now
applicable to some of these cases. Whether it will be
applicable to your client's case or not, I really don't
know because we haven't gone far enough to know that.
But basically I've ruled on this before. And of course

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1Ponce has not appealed the enhancement under 8 U.S.C.
§ 1326 on the merits.
3
your remedy would be to make a record, which you're
doing, and prefect your appeal, which I assume you will
do.
The court then explained to him that he could be sentenced to a
maximum of fifteen years under the statute, but failed to give the
advice regarding the sentencing guidelines as required by Rule 11.
Ponce then entered a plea of guilty.
Ponce appeared for sentencing on August 26, 1992. According
to the presentence report, Ponce's base offense level § 1326 was 8.
Because he had been previously been convicted of an aggravated
felony, however, the report recommended a 16 level increase under
§ 2L1.2 (b) (2). A two-level decrease for acceptance of
responsibility yielded a offense level of 22. Since Ponce had a
criminal history category of VI, his guideline range was 84-105
months imprisonment.
Ponce filed no objections to the PSR calculations, but
requested a downward departure on grounds that the nature of the
past aggravated felony was not serious enough to warrant the 16-
level increase. The district court, while voicing his frustration
with the guidelines, declined to depart and sentenced Ponce to 84
months imprisonment and three years supervised release. Ponce
appealed.1
II.
Rule 11 provides in relevant part that "the court must address
the defendant personally in open court and inform the defendant of,

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2 These holdings find direct support in the advisory
committee's note to the 1989 amendment:
Since it will be impracticable, if not impossible, to
know which guidelines will be relevant prior to the
formulation of a presentence report and resolution of
disputed facts, the amendment does not require the
court to specify which guidelines will be important or
which grounds for departure might prove to be
significant . . . . By giving the advice, the court
places the defendant and defense counsel on notice of
the importance that guidelines may play in sentencing
and of the possibility of departure from those
guidelines.
4
and determine that he understands . . . the fact that the court is
required to consider any applicable sentencing guidelines but may
depart from those guidelines under some circumstances." Fed. R.
Crim. P. 11 (c) (1). The government concedes that "the record is
painfully clear: no participant in the guilty plea proceeding
expressly mentioned the Sentencing Guidelines." It nonetheless
maintains that the district court's omission should be regarded as
harmless error.
We have held that trial courts are under no obligation to
inform a defendant of his likely guideline range or the possible
adjustments before accepting his plea. See United States v. De
Fusco, 930 F.2d 413, 415 (5th Cir.), cert. denied, 112 S.Ct. 239
(1991); United States v. Pearson, 910 F.2d 221, 223 (5th Cir.
1990), cert. denied, 111 S.Ct. 977 (1991); see also United States
v. Horne, 1993 U.S. App. Lexis 5012 (D.C.Cir. 1993); United States
v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991); United States v.
Fernandez, 877 F.2d 1138, 1143 (2d Cir. 1989).2 Rather, as the

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text of Rule 11 suggests, the court need only advise the defendant
that it must "consider any applicable sentencing guidelines but may
depart from those guidelines under some circumstances." It is well
established that a district court's failure to explain that it must
consider the guidelines is subject to harmless error review. See,
e.g., United States v. Hekiman, 975 F.2d 1098, 1104 (5th Cir.
1992); United States v. McLeod, No. 91-5729 (5th Cir. 1992); United
States v. Perdomo-Serrano, No. 90-8670 (5th Cir. 1992).
We have then a failure to mention the guidelines coupled with
the district court's statement that he did not agree with the
sentencing framework that is now applicable to "some" of these
cases. In combination, the omission and the statement leaves a
confused advice to the defendant. The guidelines in fact carried
a sharp sting--a guideline range of 84-105 months. Betraying his
lack of sympathy, earlier expressed when the plea was taken, the
district court rejected Ponce's request to deport made at the time
of sentencing and sentenced him to seven years imprisonment and
three years supervised probation. In sum, the guidelines were
never mentioned and the district court's sympathetic statement was
not qualified by the limits upon the judge's discretion imposed by
the guidelines. We decline to rely on the actions of counsel or on
what counsel "must have told him" to infer that Ponce understood
the applicability of the guidelines. Such inferences, however,
form the basis of the government's argument that "although the
district court did not expressly refer to the Guidelines it is

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6
clear that the court and the parties were fully aware of the effect
of the Sentencing Guidelines."
In sum, we find that given the unique facts of this case the
error was not harmless. We vacate the conviction and remand to
allow defendant to plead again to the indictment.
VACATED and REMANDED.

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