United States v. Jones

176 F. App'x 480

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 11, 2006

Charles R. Fulbruge III Clerk No. 04-11465 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT HEWITT JONES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:04-CR-153-ALL --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Robert Hewitt Jones appeals his sentence following his

guilty plea conviction for theft or receipt of stolen mail matter

in violation of 18 U.S.C. § 1708. He contends that he was

sentenced in contravention of United States v. Booker, 543 U.S.

220 (2005).

Jones’s plea agreement contained an express waiver of his

right to appeal his sentence and he retained only the “rights

(a) to bring a direct appeal of (i) a sentence exceeding the

statutory maximum punishment, (ii) an upward departure from the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-11465 -2-

guideline range deemed applicable by the district court, or

(iii) an arithmetic error at sentencing, and (b) a claim of

ineffective assistance of counsel.” The Government seeks to

enforce the waiver. Our review of the record indicates that the

waiver was knowing and voluntary and that under its plain

language, it bars Jones’s Booker arguments. See United States v.

Bond, 414 F.3d 542, 545-46 (5th Cir. 2005). The waiver is not

invalid merely because it was made before Booker. See United

States v. Burns, 433 F.3d 442, 450-51 (5th Cir. 2005).

AFFIRMED.