United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 21, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03-40559
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
REYNALDO HINOJOSA-AGUIRRE,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1700-1
_________________________________________________________________
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:1
Reynaldo Hinojosa-Aguirre pleaded guilty to possession with
intent to distribute 50,383 pills of 3,4-Methylenedioxy
Methamphetamine. In a written plea agreement, he agreed to waive
“the right to appeal the sentence (or the manner in which it was
determined) on the grounds set forth in 18 U.S.C. § 3742 or on any
ground.” On direct appeal, this court rejected his challenge to
the constitutionality of the statute of conviction.2 United States
1
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this opinion should not be published and is not precedent except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.
2
Hinojosa-Aguirre did not appeal his sentence.
v. Hinojosa-Aguirre, 95 Fed. Appx. 640 (5th Cir. 2004). After the
Supreme Court denied his petition for a writ of certiorari,
Hinojosa-Aguirre filed a timely petition for rehearing, requesting
relief from the Supreme Court under Blakely v. Washington, 124
S.Ct. 2531 (2004). The Supreme Court granted the petition for
rehearing, vacated its denial of the petition for writ of
certiorari, granted certiorari, and remanded for further
consideration in the light of United States v. Booker, 125 S.Ct.
738 (2005). Jimenez-Velasco v. United States, 125 S.Ct. 1110
(2005). We requested and received supplemental letter briefs
addressing the impact of Booker.
Hinojosa-Aguirre argues in his supplemental brief that,
because there is no evidence in the record that the parties
contemplated or discussed the right to sentencing under the
Sentencing Guidelines as construed in Booker, the court cannot find
that he intentionally relinquished his right to appeal his
sentence. As Hinojosa-Aguirre acknowledges, this contention is
foreclosed by our opinion in United States v. McKinney, 406 F.3d
744 (5th Cir. 2005). See also Brady v. United States, 397 U.S.
742, 757 (1970) (“a voluntary plea of guilty intelligently made in
the light of the then applicable law does not become vulnerable
because later judicial decisions indicate that the plea rested on
a faulty premise”). Because Hinojosa-Aguirre validly waived his
right to appeal his sentence, we decline to address his contentions
regarding his sentence.
2
For the foregoing reasons, we conclude that nothing in the
Supreme Court’s Booker decision requires us to change our prior
decision in this case. We therefore reinstate our judgment
affirming Hinojosa-Aguirre’s conviction.
JUDGMENT REINSTATED.
3