United States Court of Appeals
Fifth Circuit
F I L E D
In the June 21, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-41125
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CASEY EVERETT BOND,
Defendant-Appellant
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
______________________________
Before DAVIS, SMITH, and DENNIS, ant to a plea agreement that included an
Circuit Judges. appeal-waiver provision, he argues that he is
still has the right to appeal by virtue of a pro-
JERRY E. SMITH, Circuit Judge: vision in the agreement that authorizes appeal
of sentences exceeding the “statutory maxi-
Casey Bond appeals his sentence in light of mum.” He reasons that Booker changes the
United States v. Booker, 125 S. Ct. 738 definition of “statutory maximum” to the maxi-
(2005).1 Although Bond pleaded guilty pursu
1
(...continued)
1
Bond’s briefs actually argue in terms of We update his argument in light of Booker, which
Blakely v. Washington, 124 S. Ct. 2531 (2004). extended the Blakely holding to the United States
(continued...) Sentencing Guidelines.
mum term of incarceration that is authorized mined the sentence.
by facts admitted to by the defendant or found
by a jury beyond a reasonable doubt. Because, Bond was explicitly advised in the plea agree-
however, post-Booker, “statutory maximum” ment that he could receive a maximum of ten
assumes its ordinary definition of the max- years’ imprisonment on count one and a maxi-
imum term of imprisonment authorized by the mum of five years on count two.
statute of conviction for purposes of a plea
agreement, and because Bond was sentenced Pursuant to recommendations in the presen-
below the statutory maximum as so defined, tence report, the district court engaged in fact-
we dismiss the appeal as barred by the valid findingSSdetermining that Bond had possessed
plea agreement. the firearm in connection with another felony,
possession with the intent to distribute mari-
I. huanaSSthat increased the applicable sentenc-
Bond pleaded guilty to one count of pos- ing range under U.S.S.G. § 2K1.1(b)(5). The
session of a firearm by a felon, in violation of resulting range was 24 to 30 months’ impris-
18 U.S.C. § 922(g)(1) and one count of pos- onment, and Bond was sentenced at the bot-
session with intent to distribute less than 50 tom of the range, to 24 months.
kilograms of marihuana, in violation of 21
U.S.C. § 841(a)(1). According to his written In response to the PSR, Bond objected
plea agreement, he waived the right to appeal, based on Blakely, which held a state sentenc-
as follows: ing scheme unconstitutional under the Sixth
Amendment because it allowed a defendant to
Except as otherwise provided in this agree- receive a sentence higher than that based on
ment, the Defendant expressly waives the facts found by a judge and not admitted to by
right to appeal the sentence on all grounds, the defendant or found by a jury. The district
including an appeal of sentencing pursuant court overruled Bond’s objections based on
to 18 U.S.C. 3742. The Defendant further United States v. Pineiro, 377 F.3d 464 (5th
agrees not to contest sentencing in any post Cir. 2004), vacated, 125 S. Ct. 1003 (2005),
conviction proceeding including, but not which held that Blakely does not apply to the
limited to, a proceeding under 28 U.S.C. federal sentencing guidelines.
2255. The Defendant, however, reserves
the right to appeal the following: (a) any Bond argues that his sentencing is infirm
punishment imposed in excess of the statu- under Booker because it is based in part on
tory maximum; (b) any upward departure facts that he neither admitted to, nor were
from the guidelines range deemed most ap- found by a jury beyond a reasonable doubt.2
plicable by the sentencing court; (c) arith- The government, to the contrary, asserts that
metic errors in the guidelines calculations; we should dismiss the appeal on the ground
and (d) a claim of ineffective assistance of that by his plea agreement, Bond waived the
counsel that affects the validity of the waiv- right to appeal his sentence.
er itself. The Defendant knowingly and
voluntarily waives any right to appeal in
exchange for the concessions made by the 2
Bond claims that the fact that he admitted to in
Government in this agreement and with full his guilty plea authorized only a maximum sen-
understanding that the Court has not deter- tence of eighteen months under the guidelines.
2
II. B.
To determine whether an appeal of a sen- Bond does not contest that the waiver lan-
tence is barred by an appeal waiver provision guageSSwaiving the right to appeal “on all
in a plea agreement, we conduct a two-step grounds, including an appeal of sentencing
inquiry: (1) whether the waiver was knowing pursuant to 18 U.S.C. [§] 3742”SSis broad
and voluntary and (2) whether the waiver ap- enough to cover an appeal based on Booker
plies to the circumstances at hand, based on and its progeny. Rather, notwithstanding that
the plain language of the agreement. See Unit- broad wording, Bond argues that he is permit-
ed States v. McKinney, 406 F.3d 744, 746-47 ted to appeal his sentence because, he claims,
(5th Cir. 2005). Under this test, Bond has the explicit exception for “any punishment im-
waived appeal. posed in excess of the statutory maximum” is
met in this case.
A.
A defendant may waive his statutory right In defining “statutory maximum,” Bond
to appeal his sentence if the waiver is knowing looks to Blakely, later quoted in Booker: “Our
and voluntary.3 Bond does not allege, and precedents make clear, however, that the ‘stat-
there is no indication in the record, that his rat- utory maximum’ for Apprendi purposes is the
ification of the plea agreement was anything maximum sentence a judge may impose solely
but voluntary. Because he indicated that he on the basis of the facts reflected in the jury
read and understood the agreement, which verdict or admitted by the defendant.”5 As-
includes an explicit, unambiguous waiver of suming arguendo that Bond’s calculations are
appeal, the waiver was both knowing and correct, this definition of “statutory maximum”
voluntary.4 would allow him an escape from the appeal
waiver provision, because he was sentenced to
24 months, and he claims that the facts admit-
ted in his guilty plea authorized a maximum of
3
only 18 months.
McKinney, 406 F.3d at 746 (citing United
States v. Robinson, 187 F.3d 516, 517 (5th Cir.
Unfortunately for Bond, however, as as-
1999); United States v. Portillo, 18 F.3d 290, 292
tutely observed in United States v. Rubbo, 396
(5th Cir. 1994) (“To be valid, a defendant’s waiver
of his right to appeal must be informed and volun- F.3d 1330, 1334-35 (11th Cir. 2005), the term
tary. A defendant must know that he had a ‘right “statutory maximum” for purposes of Blakely
to appeal his sentence and that he was giving up and Booker has a meaning and import that is
that right.’”) (citing United States v. Melancon, significantly different from its meaning for
972 F.2d 566, 567-68 (5th Cir. 1992)). purposes of Bond’s appeal waiver, when the
context in which the terms are used is carefully
4
See McKinney, 406 F.3d at 746 (citing Por- scrutinized.6 “In the Apprendi/Booker line of
tillo, 18 F.3d at 293 (“[W]hen the record of the
Rule 11 hearing clearly indicates that a defendant
has read and understands his plea agreement, and 5
Blakely, 124 S. Ct. at 2537 (emphasis omit-
that he has raised no question regarding a waiver- ted); see also Booker, 125 S. Ct. at 749; Apprendi
of-appeal provision, the defendant will be held to v. New Jersey, 530 U.S. 466 (2000).
the bargain to which he agreed, regardless of
6
whether the court specifically admonished him Towne v. Eisner, 245 U.S. 418, 425 (1918)
concerning the waiver of appeal.”)). (continued...)
3
decisions, the Supreme Court used the term U.S. App. LEXIS 11418 (5th Cir. June 16,
‘statutory maximum’ to describe the parame- 2005) (per curiam) (on rehearing). Cortez “ar-
ters of the rule announced in those decisions, gue[d] that he did not waive the right to ap-
a rule that had nothing to do with the scope of peal a sentence above the statutory maximum
appeal waivers.” Id. at 1334. In that context as that term was defined in Blakely.” Id. at
it was used in a “specialized,” “non-natural” *2. Citing McKinney, 406 F.3d at 746-47, the
sense, used “not only for semantic convenience Cortez panel reasoned that “[t]he language in
but also in order to justify and explain the the appellate waiver must be afforded its plain
holdings the Court entered in those decisions.” meaning in accord with the intent of the parties
Id. “Everyone knows that a judge must not at the time the plea agreement was executed.”
impose a sentence in excess of the maximum Cortez, 2005 U.S. App. LEXIS 11418, at *2.
that is statutorily specified for the crime. By The court concluded that there was “no indica-
labeling a sentence that the judge may not tion that the parties intended that the exception
impose under the Apprendi/Booker doctrine as in the appellate waiver for ‘a sentence exceed-
one in excess of the ‘statutory maximum’ the ing the statutory maximum punishment’ would
Court may have sought to call into play that have a meaning other than its ordinary and
well-known principle of law.” Id. (internal natural meaning.” Id. (citations omitted).
citations omitted). Thus, citing Rubbo, 396 F.3d at 1334-35, the
Cortez panel reasoned that in this context, the
We must interpret the plea agreement like term “statutory maximum” in an appeal waiver
a contract, in accord with what the parties in- means “the upper limit of punishment that
tended.7 There is no indication that they Congress has legislatively specified for viola-
meant for the term “statutory maximum” to be tions of a statute.” Id.
accorded the non-natural definition it assumed
in Blakely and Booker. In the absence of evi- The same result obtains here. Under the
dence that the parties to the agreement intend- ordinary definition of “statutory maximum,”
ed such a specialized, non-natural definition, Bond has a maximum sentence of 10 years on
we apply the term’s usual and ordinary mean- count one and 5 years on count two. Because
ing, “the upper limit of punishment that Con- his sentence of 24 months does not exceed
gress has legislatively specified for violation of either of those amounts, that exception to his
a statute.” Id. at 1334-35. appeal waiver is not met, and the blanket pro-
hibition of appeal applies.8 And, because Bond
This is the approach taken most recently by waived his right to appeal his sentence under
this court in United States v. Cortez, 2005
8
Other circuits similarly have concluded that
6 Blakely and Booker do not alter the plain meaning
(...continued)
(Holmes, J.) (“A word is not a crystal, transparent of “statutory maximum” as defined in waiver of
and unchanged, it is the skin of a living thought and appeal provisions in plea agreements. See United
may vary greatly in color and content according to States v. West, 392 F.3d 450 (D.C. Cir. 2004);
the circumstances and the time in which it is United States v. Blick, 2005 U.S. App. LEXIS
used.”). 9742, at *19 (4th Cir. May 27, 2005); United
States v. Luebbert, 2005 U.S. App. LEXIS 9972,
7
See United States v. Davis, 393 F.3d 540, 546 at *3 (6th Cir. June 1, 2005); United States v.
(5th Cir. 2004). Green, 405 F.3d 1180, 1191-94 (10th Cir. 2005).
4
the present circumstances, we do not need to
address his Sixth Amendment argument.
The appeal is DISMISSED.
5