United States v. Harrington

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 27, 2005

Charles R. Fulbruge III
Clerk
No. 03-20523
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH HAROLD HARRINGTON,

Defendant-Appellant.

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Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-707-ALL
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before REAVLEY, JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

The Supreme Court has vacated our previous judgment and

remanded the case for further consideration in light of United

States v. Booker, 583 U.S. ____ (2005). In the appellant’s brief

he did claim that the sentence above the guideline range would be

forbidden by the Supreme Court when it decided Blakely v.

Washington, because his waiver should be treated as allowing

appeal if the guideline range was exceeded.

*
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that this opinion should not be published and is not precedent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. 03-20523
-2-

We reject the argument that the waiver allowed an appeal of

a sentence below the statutory maximum because it exceeded the

guideline range. The plea agreement expressly named the

statutory maximum as what he accepted.

Having bound himself to the sentence without appeal, we

would hold no plain error if we were to accord Harrington

jurisdiction to appeal. However, we see the appeal as we did

before: barred by the waiver.

APPEAL DISMISSED.