United States v. Hackworth

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 _______________ m 04-10386 _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS LAWAYLON HACKWORTH, Defendant-Appellant. _________________________ 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