United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-10127
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARDIO TRIGG, also known as Trigg-C,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-00078-2
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
This court dismissed Mardio Trigg’s appeal of his sentence
based on an appeal waiver provision in his plea agreement.
United States v. Trigg, No. 04-10127 (5th Cir. July 6, 2004)
(unpublished). The Supreme Court vacated and remanded for
further consideration in light of United States v. Booker, 125 S.
Ct. 738 (2005). Trigg v. United States, 125 S. Ct. 995 (2005).
*
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this opinion should not be published and is not precedent except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. 04-10127
-2-
This court requested and received supplemental letter briefs
addressing the impact of Booker.
In his supplemental letter brief, Trigg argues that the
district court committed Booker error. The Government reurges
application of the appeal waiver.
A defendant may waive his statutory right to appeal as part
of a valid plea agreement, provided that the waiver is knowing
and voluntary. United States v. Robinson, 187 F.3d 516, 517 (5th
Cir. 1999). The defendant must know that he had a right to
appeal and that he was relinquishing that right. United States
v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994). When the record
shows that the defendant read and understood the plea agreement
and that he raised no question regarding the sentence appeal
waiver provision, he will be held to the bargain that he has
struck. Id. at 292-93; accord United States v. McKinney, 406
F.3d 744, 746 (5th Cir. 2005).
The record reflects that Trigg’s appeal waiver was knowing
and voluntary. He preserved the right to appeal only (1) a
sentence in excess of the maximum sentence; (2) an upward
departure from the guidelines range; and (3) ineffectiveness of
counsel. “The language in [an] 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. Cortez,
___ F.3d ___, No. 04-10152, 2005 WL 1404944, at *1 (5th Cir. June
16, 2005) (per curiam). Therefore, the reservations in Trigg’s
appeal waiver do not preserve the district court’s factual
findings and legal conclusions underlying its determination of
No. 04-10127
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the appropriate guidelines range. See id. (sentence in excess of
the statutory maximum); McKinney, 406 F.3d at 746-47 (upward
departure).
Having reconsidered our decision in accordance with the
Supreme Court’s instructions, we REINSTATE OUR JUDGMENT
dismissing Trigg’s appeal from his sentence.