United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 22, 2006
FOR THE FIFTH CIRCUIT
______________________
Charles R. Fulbruge III
No. 03-41386 Clerk
______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OHARA LINEAR LAWS,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
Case No. G-02-CR-8-ALL
___________________________________________________
ON PETITION FOR REHEARING
Before BARKSDALE, BENAVIDES, and DENNIS, Circuit
Judges.
PER CURIAM:*
The petition for rehearing is GRANTED. The panel’s
December 7, 2005 opinion is VACATED and replaced with the
following opinion.
On April 7, 2003, defendant Ohara Linear Laws pleaded
*
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that this opinion should not be published and is not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.
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guilty to one count of possession with the intent to
distribute 50 grams or more of cocaine base, pursuant to
a plea agreement with the government. In the plea
agreement, Laws waived his right to appeal his conviction
and sentence except to the extent that his sentence
represented an upward departure from the applicable
guidelines range calculated by the district court.
The presentence investigation report attributed to
Laws a total of 483.95 grams of cocaine base, yielding a
guidelines range of 240 to 293 months in prison. Laws
filed written objections to the presentence investigation
report, but the district court adopted the guidelines
range recommended in the report and sentenced Laws to 282
months in prison.
This court affirmed Laws’ conviction and sentence on
July 20, 2004. On January 24, 2005, the Supreme Court
vacated our decision and remanded the case to this court
for consideration in light of United States v. Booker, 543
U.S. 220 (2005). See Laws v. United States, 543 U.S. 1112
(2005). This court then directed the parties to file
supplemental briefs addressing the effect of Booker.
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Laws asserts that his sentence runs afoul of Booker
because it was based on facts—specifically, the drug
quantities that the sentencing court attributed to
Laws—that were neither admitted by Laws nor found by a
jury beyond a reasonable doubt. The government argues
that Laws waived his right to appeal in his plea agreement
with the government, and that, in any event, he has not
established that the sentencing court committed plain
error. Because we agree with the government that Laws’
appeal waiver encompasses his current claim, we must
dismiss the appeal.
In its previous opinion in this case, this court
already rejected Laws’ challenge to the validity of his
appeal waiver. Nothing in the Supreme Court’s Booker
decision affects that finding. This court has repeatedly
held that an appeal waiver contained in a pre-Booker plea
agreement can apply to bar a defendant’s later Booker
claims. See United States v. Burns, 433 F.3d 442, 445-50
(5th Cir. 2005); United States v. Bond, 414 F.3d 542, 545-
46 (5th Cir. 2005); United States v. McKinney, 406 F.3d
744, 746-47 (5th Cir. 2005). Because Laws’ sentence of
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282 months in prison falls within the guidelines range
calculated by the district court and Laws has not shown
that the district court erred in calculating the
applicable guidelines range, Laws has waived his right to
appeal his sentence. Accordingly, the appeal is
DISMISSED.
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