United States Court of Appeals
Fifth Circuit
F I L E D
In the April 15, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 04-41223
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
AUNDRE MCKINNEY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m G-03-CR-06
______________________________
Before DAVIS, SMITH, and I.
DENNIS, Circuit Judges. McKinney pleaded guilty to federal
narcotics charges pursuant to a cooperation
JERRY E. SMITH, Circuit Judge: agreement with the government. In
consideration for the plea, the government
Aundre McKinney appeals his sentence in agreed not to oppose a three-level reduction
light of United States v. Booker, 125 S. Ct. from the applicable base offense level, under
738 (2005). Because McKinney waived his the sentencing guidelines, for McKinney’s
right to appeal as part of his plea agreement, prompt acceptance of responsibility. The
we dismiss the appeal. agreement plainly states that McKinney was
not limiting the court’s consideration of his
“relevant conduct that relates specifically to McKinney was to be held responsibleSSthat in-
the controlled substance cocaine base for creased the applicable sentencing range under
which he [McKinney] may have been involved the guidelines. The court adopted the PSR’s
in distributing during the life of the charged recommendation to give McKinney a three-
offenses.” level downward adjustment for acceptance of
responsibility, to which the government did
The government conditionally agreed to not object.
recommend a downward departure under
U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) if The resulting sentencing range was 135 to
McKinney cooperated in the investigation 168 months’ imprisonment. The government
and/or prosecution of others involved in the made a motion for downward departure on the
offenses set forth in the indictment. The plea ground that McKinney had rendered
agreement outlines McKinney’s understanding substantial assistance to the government
of his sentencing exposure, noting that “the pursuant to U.S.S.G. § 5K1.1. That motion
sentence to be imposed is discretionary with was granted, resulting in a sentence of 84
the sentencing judge and further [McKinney] months.
understands that if the sentencing judge
imposes a sentence up to the maximum es- In response to the PSR, McKinney objected
tablished by statute, [McKinney] cannot for based on Blakely v. Washington, 124 S. Ct.
that reason alone, withdraw his guilty plea and 2531 (2004), which held a state sentencing
will remain bound by all the obligations of this scheme unconstitutional under the Sixth
agreement.” Amendment because it allowed a defendant to
receive a sentence higher than that based on
The agreement specifically notes the facts found by a judge and not admitted to by
maximum sentence available for the offense to the defendant or found by a jury. The district
which McKinney pleaded guilty. Importantly, court overruled McKinney’s objections
the agreement contains a provision waiving because of United States v. Pineiro, 377 F.3d
McKinney’s right to appeal unless the district 464 (5th Cir. 2004), vacated, 125 S. Ct. 1003
court upwardly departed from the applicable (2005), which held that Blakely does not apply
guidelines range: to the federal sentencing guidelines.
The defendant is aware that Title 18, Unit- McKinney moves that the judgment of
ed States Code, Section 3742 affords a sentence be vacated and remanded for
defendant the right to appeal the sentence resentencing in light of Booker, 125 S. Ct. at
imposed. Knowing that, the defendant 746 (opinion of Stevens, J.), which held that
waives his rights to appeal and collaterally Blakely extends to constitutional infirmities in
attack his conviction or the sentence the federal sentencing guidelines insofar as it
assessed by the Court, unless the Court makes mandatory upward adjustments from
upwardly departs from the guidelines. the maximum authorized sentence supported
by the facts established by a plea of guilty or
Pursuant to recommendations in the presen- jury verdict, based on facts found by a judge at
tence report (“PSR”), the district court
engaged in factfindingSSfor example, dete-
rmining the total cocaine base for which
2
sentencing.1 The government counters with a that he has raised no question regarding a
motion to dismiss the appeal on the ground waiver-of-appeal provision, the defendant
that by his plea agreement McKinney waived will be held to the bargain to which he
the right to appeal any sentence that does not agreed, regardless of whether the court
exceed the statutory range and does not up- specifically admonished him concerning the
wardly depart from the range established by waiver of appeal.
the guidelines.
Because McKinney indicated that he had read
II. and understood the plea agreement, which in-
A. cludes an explicit, unambiguous waiver of
A defendant may waive his statutory right appeal, the waiver was both knowing and
to appeal if the waiver is knowing and voluntary.
voluntary.2 We apply normal principles of
contract interpretation when construing plea B.
agreements.3 We must determine whether the waiver ap-
plies to the circumstances at hand, based on
McKinney does not allege, and there is no the plain language of the plea agreement.
indication in the record, that his ratification of According to the language of the agreement,
the plea agreement was anything but knowing appeal is waived “unless the Court upwardly
and voluntary. As we stated in United States departs from the guidelines.” The exception is
v. Portillo, 18 F.3d 290, 293 (5th Cir. 1994): not met, because no upward departure was as-
sessedSSMcKinney was sentenced to 84
[W]hen the record of the Rule 11 hearing months, which is under the applicable
clearly indicates that a defendant has read guidelines range as calculated by the district
and understands his plea agreement, and court.
1
McKinney argues that an upward departure
In his objection, McKinney claimed that the was in fact assessed because Booker dictates
district court was authorized to sentence him to that a guidelines calculation may be made
only 46-57 months, based on facts solely
based only on facts admitted by the defendant
contained in his guilty plea.
or found by a jury beyond a reasonable doubt.
2
See United States v. Robinson, 187 F.3d Assuming arguendo that McKinney’s calcula-
516, 517 (5th Cir. 1999); United States v. Portil- tions are correct, this definition of “guidelines
lo, 18 F.3d 290, 292 (5th Cir. 1994) (“To be range” would allow him to avoid the appeal
valid, a defendant’s waiver of his right to appeal waiver provision, because he was sentenced to
must be informed and voluntary. A defendant 84 months, and he claims that the facts ad-
must know that he had a ‘right to appeal his mitted in his guilty plea authorized a maximum
sentence and that he was giving up that right.’”) of only 57 months.
(citing United States v. Melancon, 972 F.2d 566,
567-68 (5th Cir. 1992)). Unfortunately for McKinney, however,
3 Booker does not change the definition of a
United States v. Cantu, 185 F.3d 298, 304
“guidelines range,” as he contends. Booker
(5th Cir. 1999) (“[W]e apply general principles
of contract law in order to interpret the terms of
only strikes down the mandatory application
the plea agreement.”) of guidelines ranges that are based on facts not
3
found by a jury beyond a reasonable doubt or months, which is no departure.5
admitted by a defendant; Booker not only
allows a district court to find facts and Finally, McKinney is bound to his
calculate guidelines ranges, but requires a obligations under the plea agreement; the
court to calculate and consider them, although government has fulfilled all its own promises
a court may now tailor sentences based on and has been faithful to the agreement. As
other statutory concerns as well.4 Although promised, it did not object to the PSR’s
Booker influences the way the guidelines recommended three-level downward
ranges may be ultimately applied, it does not adjustment for acceptance of responsibility,
contain any language changing the definition and it moved for a downward departure for
of what an appropriate guidelines range is. substantial assistance.
Because the district court was still allowed The motion to remand is DENIED; the
to calculate McKinney’s advisory guideline motion to dismiss the appeal is GRANTED;
range based on facts to which he did not admit and the appeal is DISMISSED.6
and that were not found by a jury beyond a
reasonable doubt, the range from which we
determine whether McKinney was granted an
upward departure (for the purpose of the
appeal-waiver provision) was 135 to 168
months. McKinney was sentenced to 84
4
See Booker, 125 S. Ct. at 756-57 (opinion
of Breyer, J.) (holding that severing the unconsti-
tutional provisions of the guidelines renders them
“advisory” and “requires a sentencing court to
consider Guidelines ranges, . . . but it permits the 5
We thus agree with two other circuits that
court to tailor the sentence in light of other have reached the same conclusion, i.e., that
statutory concerns as well . . .”) (emphasis add- Blakely and Booker do not alter the plain mean-
ed); see also United States v. Mares, 2005 U.S. ing of appeal-waiver provisions in valid plea
App. LEXIS 3653, at *19 (5th Cir. Mar. 4, agreements. See United States v. Rubbo, 396
2005) (“[The] duty to consider the Guidelines F.3d 1330 (11th Cir. 2005); see also United
will ordinarily require the sentencing judge to States v. West, 392 F.3d 450 (D.C. Cir. 2004).
determine the applicable Guidelines range even Both cases rejected the argument that Blakely
though the judge is not required to sentence and its progeny altered the meaning of “statutory
within that range. The Guideline range should be maximum” for the purposes of an appeal-waiver
determined in the same manner as before provisionSSan argument not advanced by
Booker/Fanfan. Relatedly, Booker contemplates McKinney. See Rubbo, 396 F.3d at 1334-35;
that, with the mandatory use of the Guidelines see also West, 392 F.3d at 460.
excised, the Sixth Amendment will not impede a
6
sentencing judge from finding all facts relevant to The government’s motion to extend the time
sentencing.”). for filing its brief is DENIED as unnecessary.
4