United States v. Brown

143 F. App'x 628

Opinion

ON PETITION FOR REHEARING

PER CURIAM: *

Roy L. Brown petitions for panel rehearing in light of the holding in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), is applicable to the Federal Sentencing Guidelines. We now GRANT the petition for rehearing, withdraw our earlier opinion, and substitute the following. See Fed. R.App. P. 40(a)(4)(C).

Brown appeals following his guilty plea to securities fraud, in violation of 15 U.S.C. §§ 77q(a) and 77x, and bank fraud, in violation of 18 U.S.C. § 1344. Brown pleaded guilty pursuant to a written plea agreement that contained a waiver of the right to appeal. We may examine Brown’s plea agreement sua sponte to determine whether we may hear his claims. United States v. Martinez, 263 F.3d 436, 438 (5th Cir.2001). We conclude that the appeal is barred by the plain language of Brown’s knowing and voluntary appeal waiver in the plea agreement. See United States v. Bond, 414 F.3d 542, 546 (5th Cir.2005); United States v. McKinney, 406 F.3d 744, 746-47 (5th Cir.2005).

PETITION FOR REHEARING GRANTED; APPEAL DISMISSED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.