United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 27, 2005
Charles R. Fulbruge III
Clerk
No. 03-11196
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ROY L BROWN
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-164-ALL-N
--------------------
ON PETITION FOR REHEARING
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Roy L. Brown petitions for 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 GRANT the petition for
rehearing, withdraw our earlier opinion, and substitute the
following. See FED. R. APP. P. 40(a)(4)(C).
*
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this opinion should not be published and is not precedent except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. 03-11196
-2-
Brown appeals following his guilty plea to securities fraud,
in violation of 15 U.S.C. §§ 77q(a) and 77x, and bank fraud, in
violation of 18 U.S.C. § 1344. Brown pleaded guilty pursuant to
a written plea agreement that contained a waiver of the right to
appeal. We may examine Brown’s plea agreement sua sponte to
determine whether we may hear his claims. United States v.
Martinez, 263 F.3d 436, 438 (5th Cir. 2001). We conclude that
the appeal is barred by the plain language of Brown’s knowing and
voluntary appeal waiver in the plea agreement. See United States
v. Bond, __ F.3d __, No. 04-41125, 2005 WL 1459641, at *3-4 (5th
Cir. June 21, 2005); United States v. McKinney, 406 F.3d 744,
746-47 (5th Cir. 2005).
PETITION FOR REHEARING GRANTED; APPEAL DISMISSED.