United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 27, 2005
Charles R. Fulbruge III
Clerk
No. 03-20523
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH HAROLD HARRINGTON,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-707-ALL
--------------------
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before REAVLEY, JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
The Supreme Court has vacated our previous judgment and
remanded the case for further consideration in light of United
States v. Booker, 583 U.S. ____ (2005). In the appellant’s brief
he did claim that the sentence above the guideline range would be
forbidden by the Supreme Court when it decided Blakely v.
Washington, because his waiver should be treated as allowing
appeal if the guideline range was exceeded.
*
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that this opinion should not be published and is not precedent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. 03-20523
-2-
We reject the argument that the waiver allowed an appeal of
a sentence below the statutory maximum because it exceeded the
guideline range. The plea agreement expressly named the
statutory maximum as what he accepted.
Having bound himself to the sentence without appeal, we
would hold no plain error if we were to accord Harrington
jurisdiction to appeal. However, we see the appeal as we did
before: barred by the waiver.
APPEAL DISMISSED.