United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 16, 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
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ON REHEARING
Before GARZA, DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:
We granted panel rehearing in light of the holding in United
States v. Booker, 125 S. Ct. 738 (2005) that Blakely v.
Washington, 124 S. Ct. 2531 (2004) is applicable to the federal
sentencing guidelines. We now withdraw our earlier opinion and
substitute the following. See FED. R. APP. P. 40(a)(4)(C).
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
No. 04-10152
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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.
The Government filed a motion to dismiss based on an appeal
waiver in Cortez’s plea agreement. The record reflects that
Cortez knowingly and voluntarily waived his right to appeal his
sentence in his plea agreement and, thus, that the waiver was
validly made. United States v. Robinson, 187 F.3d 516, 517 (5th
Cir. 1999). However, Cortez argues that he did not waive the
right to appeal a sentence above the statutory maximum as that
term was defined in Blakely.
The language in the appellate waiver must be afforded its
plain meaning in accord with the intent of the parties at the
time the plea agreement was executed. United States v. McKinney,
F.3d , No. 04-41223, 2005 WL 887153 at *2-3 (5th Cir.
Apr. 15, 2005). There is no indication that the parties intended
that the exception in the appellate waiver for “a sentence
exceeding the statutory maximum punishment” would have a meaning
other than its ordinary and natural meaning. Id.; see United
States v. Rubbo, 396 F.3d 1330, 1334-35 (11th Cir. 2005); United
States v. West, 392 F.3d 450, 460-61 (D.C. Cir. 2004). Thus, the
exception for a sentence imposed above the statutory maximum
shall be afforded its natural and ordinary meaning of “the upper
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limit of punishment that Congress has legislatively specified for
violations of a statute.” Rubbo, 396 F.3d at 1334-35.
The maximum statutory sentence that could be imposed for
Cortez’s offense was ten years. 18 U.S.C. § 666(a). His 63-
month sentence does not fall within the exception to the appeal
waiver. The waiver is upheld, the Government’s motion to dismiss
is GRANTED, and the appeal is DISMISSED. See United States v.
Melancon, 972 F.2d 566, 568 (5th Cir. 1992).