United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-10152
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN DOMINGO CORTEZ, also
known as J.D. Cortez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:03-CR-24-1-C
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Domingo Cortez appeals his sentence imposed following
his guilty plea to theft or embezzlement concerning programs
receiving federal funds and aiding and abetting. Cortez was
sentenced to a term of imprisonment of 63 months to be followed
by a three-year term of supervised release. Cortez was also
ordered to pay restitution in the amount of $805,083.55 and a
fine of $20,000.
*
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this opinion should not be published and is not precedent except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. 04-10152
-2-
The Government argues that Cortez waived his right to appeal
his sentence in his plea agreement. Cortez responds that he did
not waive his right to appeal a sentence above the statutory
maximum and that, under Blakely v. Washington, 124 S. Ct. 2531
(2004), the constitutional statutory maximum sentence that could
be imposed upon him was 41 months.
The record reflects that Cortez knowingly and voluntarily
executed the waiver contained in his plea agreement and, thus,
the waiver was validly executed. United States v. Robinson,
187 F.3d 516, 517 (5th Cir. 1999). However, the Supreme Court
in Blakely held “that the ‘statutory maximum’ for Apprendi**
purposes is the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by
the defendant.” Blakely, 124 S. Ct. at 2537 (italics omitted).
The waiver in Cortez’s plea agreement contained an exception for
sentences imposed above the statutory maximum. Thus, out of an
abundance of caution and because appellate-waiver provisions are
to be construed against the Government, see United States v.
Somner, 127 F.3d 405, 408 (5th Cir. 1997), the court will
consider Cortez’s Blakely argument.
Relying on Blakely, Cortez argues that his 63-month sentence
was unconstitutional because there was no proof beyond a
reasonable doubt presented to a jury to support the enhancements
of his offense level based on the abuse of trust or obstruction
**
Apprendi v. New Jersey, 530 U.S. 466 (2000).
No. 04-10152
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of justice. He further argues that under Blakely, the restitution
order is unconstitutional because it was based on facts not
submitted to the jury.
This court has held that Blakely does not apply to the
federal sentencing guidelines. See United States v. Pineiro,
377 F.3d 464, 473 (5th Cir.), petition for cert. denied. denied.
filed (U.S. July 14, 2004). Therefore, Cortez’s arguments under
Blakely are foreclosed.
Cortez argues that the district court erred in failing to
grant his motion for a downward departure based on his physical
condition. He also alleges that the fine imposed is erroneous
because the district court did not consider whether the fine
would impair Cortez’s ability to make restitution. Neither of
these issues are included in the exceptions to Cortez’s voluntary
waiver of his right to appeal his sentence. Thus, the departure
ruling and the fine are not subject to review.
The motion is GRANTED, and the judgment of the district
court is AFFIRMED.