United States v. Cortez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 16, 2005

Charles R. Fulbruge III
Clerk
No. 04-10152
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN DOMINGO CORTEZ, also known
as J.D. Cortez,

Defendant-Appellant.

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Appeal from the United States District Court
for the Northern District of Texas

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ON REHEARING

Before GARZA, DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:

We granted 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 withdraw our earlier opinion and

substitute the following. See FED. R. APP. P. 40(a)(4)(C).

Juan Domingo Cortez appeals his sentence imposed following

his guilty plea to theft or embezzlement concerning programs

receiving federal funds and aiding and abetting. Cortez was
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sentenced to a term of imprisonment of 63 months to be followed

by a three-year term of supervised release. Cortez was also

ordered to pay restitution in the amount of $805,083.55 and a

fine of $20,000.

The Government filed a motion to dismiss based on an appeal

waiver in Cortez’s plea agreement. The record reflects that

Cortez knowingly and voluntarily waived his right to appeal his

sentence in his plea agreement and, thus, that the waiver was

validly made. United States v. Robinson, 187 F.3d 516, 517 (5th

Cir. 1999). However, Cortez argues that he did not waive the

right to appeal a sentence above the statutory maximum as that

term was defined in Blakely.

The language in the 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. McKinney,

F.3d , No. 04-41223, 2005 WL 887153 at *2-3 (5th Cir.

Apr. 15, 2005). There is no indication that the parties intended

that the exception in the appellate waiver for “a sentence

exceeding the statutory maximum punishment” would have a meaning

other than its ordinary and natural meaning. Id.; see 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). Thus, the

exception for a sentence imposed above the statutory maximum

shall be afforded its natural and ordinary meaning of “the upper
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limit of punishment that Congress has legislatively specified for

violations of a statute.” Rubbo, 396 F.3d at 1334-35.

The maximum statutory sentence that could be imposed for

Cortez’s offense was ten years. 18 U.S.C. § 666(a). His 63-

month sentence does not fall within the exception to the appeal

waiver. The waiver is upheld, the Government’s motion to dismiss

is GRANTED, and the appeal is DISMISSED. See United States v.

Melancon, 972 F.2d 566, 568 (5th Cir. 1992).