Arellano-Gallegos

Opinion by Judge WARDLAW. Partial Concurrence and Partial Dissent by Judge KLEINFELD.

OPINION

Samuel Arellano-Gallegos appeals his 51-month sentence imposed following his guilty plea to illegal re-entry after deportation in violation of 8 U.S.C. § 1326 (a). Arellano challenges the waiver provision in his plea agreement, and claims the district court erred by failing to acknowledge its discretion to depart downward pursuant to U.S.S.G. § 5K2.0. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a)(1), and we reverse.

I.

In his written plea agreement, Arellano agreed to waive his right to appeal the imposition of sentence upon him. The magistrate judge who took his plea upon consent, see United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir.2003) (en banc), cert. denied, — U.S. -, 124 S.Ct. 238 , 157 L.Ed.2d 182 (2003), failed to adhere to the requirements of Rule 11 regarding the waiver of appeal. Rule ll(b)(l)(N) (2002) (formerly Rule 11(c)(6) (1999)) mandates that:

Fed.R.Crim.P. ll(b)(l)(N).

The magistrate judge then filed with the district court “Findings and Recommendation Upon a Plea of Guilty and District Judge’s Acceptance of Plea of Guilty.” These…

concurring in part and dissenting in part.

I concur in Part I of the majority’s opinion and respectfully dissent from Part II.

The majority remands this appeal for resentencing because “the district court did not expressly acknowledge that it understood it had the authority to depart.” 1 We are to remand for clarification when “we are unable to determine from the record whether the district court’s ruling was an exercise of its discretion or a legal ruling” that it did not have the authority to depart. 2 But doubt does not exist merely because the judge does not “expressly acknowledge” that he has the authority to depart. The law is the opposite.

Here, the district court clearly indicated its understanding of its authority to depart from the guidelines. In discussing possible sentences if the defendant again entered the United States illegally, the court stated, “And quite frankly, it’s going to get worse, not better. In fact, the sentencing commission is trying to take out any possible departures.” This quote indicates that the district court understood that it currently possessed authority to depart.

Further, in imposing sentence, the district court stated, “I’ll treat you…