United States Court of Appeals
Fifth Circuit
F I L E D
In the June 21, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 04-10386
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LAWAYLON HACKWORTH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
m 3:03-CR-324-4-H
______________________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH, and DENNIS, Facts used to increase a criminal defen-
Circuit Judges. dant’s sentence beyond an otherwise appli-
cable statutory maximum must be charged
PER CURIAM:* by indictment and proven to a jury beyond
a reasonable doubt or established by judi-
Lawaylon Hackworth pleaded guilty of cial confession. Here, the district court de-
conspiring to steal firearms from a federally li- parted upward from Hackworth’s statutory
censed firearms dealer and to receive, possess, maximum sentence on the basis of facts
conceal, and dispose of stolen firearms. The neither found by a jury nor stipulated to by
plea agreement waived Hackworth’s right to Hackworth. Didn’t the district court re-
appeal his sentence except for “(a) a direct versibly err when enhancing Hackworth’s
appeal of (i) a sentence exceeding the statutory sentence on the basis of such unproven
maximum punishment, (ii) an upward depar- facts?
ture from the guideline range deemed applica-
ble by the district court, or (iii) an arithmetic The government moved to dismiss on the
error at sentencing, and (b) a claim of ineffec- basis of the explicit waiver of appeal contained
tive assistance of counsel.” in the plea agreement. Hackworth did not
oppose the motion. We granted it and dis-
After departing downward two levels under missed the appeal.
U.S.S.G. § 5K1.1, the district court sentenced
Hackworth to fifty-one months’ imprisonment, After Booker was announced, Hackworth
a sentence within the applicable guideline filed a petition for writ of certiorari. The Su-
range and well below the statutory maximum preme Court vacated and remanded for further
of five years. In his appeal, however, consideration in light of Booker. Hackworth v.
Hackworth challenges the application of the United States, 125 S. Ct. 1424 (2005). We re-
sentencing guidelines under Blakely v. Wash- quested and received supplemental letter briefs
ington, 124 S. Ct. 2531 (2004), which we addressing the impact of Booker.
construe as also a challenge under United
States v. Booker, 125 S. Ct. 738 (2005), which In its letter brief, the government argues
was issued after Hackworth filed his brief. that the appeal should once again be dismissed
on the basis of the waiver of appeal contained
Hackworth argues that his sentence was en- in the plea agreement. In his letter, Hack-
hanced by facts found by the judge instead of worth’s attorney makes no reference to the ap-
by a jury, in violation of Booker. Hackworth peal waiver and offers no explanation of why
framed his only issue on appeal as follows: the waiver should not be enforced.
We conclude that Hackworth is foreclosed
* by the waiver from presenting his issues on
Pursuant to 5TH CIR. R. 47.5, the court has de-
appeal. To the extent that his opening brief
termined that this opinion should not be published
and is not precedent except under the limited cir-
can be deemed to present the argument that
cumstances set forth in 5TH CIR. R. 47.5.4. the term “statutory maximum in an appeal
2
waiver means the maximum sentence that can
be imposed without judge-made factfindings,
that issue is foreclosed by United States v.
Cortez, 2005 U.S. App. LEXIS 11418, at *2
(5th Cir. June 16, 2005) (per curiam) (on re-
hearing), in which this court held that “the
exception for a sentence imposed above the
statutory maximum shall be afforded its natural
and ordinary meaning of ‘the upper limit of
punishment that Congress has legislatively spe-
cified for violations of a statute” (citing 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)).1
The appeal is DISMISSED.
1
Accord United States v. Blick, 2005 U.S.
App. LEXIS 9742, at *19 (4th Cir. May 27,
2005); United States v. Luebbert, 2005 U.S. App.
LEXIS 9972, at *3 (6th Cir. June 1, 2005); United
States v. Green, 405 F.3d 1180, 1191-94 (10th
Cir. 2005).
3