United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 13, 2004
Charles R. Fulbruge III
Clerk
No. 03-21012
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BUICHECU THOMAS TAIWO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-81-12
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Buichecu Thomas Taiwo appeals his conviction and sentence
following his guilty plea for conspiracy to commit bank fraud and
for bank fraud. Relying on Apprendi v. New Jersey, 530 U.S. 466
(2000), and Blakely v. Washington, 124 S. Ct. 2531 (2004), Taiwo
argues that his guilty plea, which included a waiver-of-appeal
provision, was involuntary because the district court did not
inform him that the amount of the intended loss, to which he did
not admit, as well as his role in the offense, were essential
*
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this opinion should not be published and is not precedent except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. 03-21012
-2-
elements that the Government had to prove beyond a reasonable
doubt.
Taiwo was rearraigned before Blakely was decided. Further,
this court has determined that Blakely does not apply to the
Guidelines. See United States v. Pineiro, 377 F.3d 464, 465-66
(5th Cir. 2004), pet. for cert. filed (U.S. July 14, 2004)(No.
04-5263). Moreover, because Taiwo was not sentenced above the
statutory maximum, his reliance on Apprendi is misplaced. See
United States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000).
Thus, the district court was under no duty under Rule 11 to
advise Taiwo that he had a right to a jury trial on the amount of
intended loss or his role in the offense inasmuch as those were
factors that increased his sentence under the Guidelines. See
Pineiro, 377 F.3d at 465-66. Further, Taiwo has shown no defect
in his indictment on the basis that it did not charge as elements
of his offense those factors that enhanced his sentence. See id.
AFFIRMED.