United States v. Kennedy

137 F. App'x 685

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 21, 2005
• Docket: 03-11334
• Status: Unpublished

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM: *

This court dismissed Gary Kennedy’s appeal of his sentence based on an appeal waiver provision in his plea agreement. United States v. Kennedy, 99 Fed. Appx. 557 (5th Cir.2004) (per curiam). We granted Kennedy’s attorney’s motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Supreme Court vacated and remanded for further consideration in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Kennedy v. United States, — U.S. -, 125 S.Ct. 1016, 160 L.Ed.2d 1036 (2005). We requested and received supplemental letter briefs addressing the impact of Booker.

In his supplemental letter brief on remand, Kennedy — represented again by counsel — correctly perceives that the question at hand regarding the appeal waiver is the following: “Does a sentence that exceeds an unenhanced guideline range constitute a sentence that exceeds the statutory maximum sentence, which is what occurred in this case, or does this refer only to increases over the statutory maximum sentence located within the United States Code?” Counsel wrote this letter on March 7, 2005, at which time he correctly observed the following:

[The Fifth Circuit] has not addressed this issue in the context of [Booker]. [It] has, however, addressed this issue in the similar context of appeal waivers and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Unfortunately, in unpublished opinions, this Court has taken contradictory positions on this issue. Compare United States v. Cortez, [120 Fed. Appx. 535 (5th Cir. Jan.10, 2005) (per curiam) ] to United States v. Berger, [119 Fed. Appx. 658, 2005 WL 66065 (5th Cir. Jan.10, 2005) (per curiam), cert. denied, - U.S. -, 125 S.Ct. 2285, - L.Ed.2d - (2005)].

Kennedy’s counsel urges that we “adopt the holding in Cortez, where this Court, ‘in an abundance of caution and because appellate-waiver provisions are to be construed against the Government,’ considered the defendant’s argument related to Blakely.”

Unfortunately for Kennedy, however, the Cortez panel granted rehearing and reversed its position. See United States v. Cortez, 120 Fed.Appx. 535 (5th Cir.2005) (per curiam) (on rehearing). In Cortez, the defendant “argue[d] that he did not waive the right to appeal a sentence above the statutory maximum as that term was defined in Blakely.” Id. at 536. Citing United States v. McKinney, 406 F.3d 744, 746-47 (5th Cir. Apr.15, 2005), the Cortez panel reasoned that “[t]he 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.” Cortez, 120 Fed.Appx. at 536. The court concluded that there was “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. (citations omitted). Thus, citing United States v. Rubbo, 396 F.3d 1330, 1334-35 (11th Cir.2005), the Cortez panel reasoned that in this context, the term “statutory maximum” in an appeal waiver means “the upper limit of punishment that Congress has legislatively specified for violations of a statute.” Id. 1

In its letter brief of March 7, 2005, the government makes no reference to the waiver of appeal. We assume, from this, that the government does not insist that the appeal waiver be enforced in this case. Only because of that circumstance, and because appeal waivers are not jurisdic tional, we will not hold Kennedy to his waiver, which otherwise, under Cortez, would require that the appeal be dismissed.

We do note, however, that Kennedy raised alleged Booker error for the first time in his petition for writ of certiorari. We have recently held that, in the context of alleged Booker error, and “absent extraordinary circumstances, [we will not] consider an argument raised for the first time in a petition for [writ of] certiorari.” United States v. Taylor, 409 F.3d 675, 676 (5th Cir.2005) (per curiam).

There are no extraordinary circumstances here. If we were to consider Kennedy’s issues, we would review for plain error, because Kennedy concedes that no Sixth Amendment objection was raised in the district court. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517). “An appellate court may not correct an error the defendant failed to raise in the district court unless there is ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’” Id. (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)).

In its supplemental brief, the government concedes plain error “in light of Booker.” 2 Based solely on facts Kennedy admitted, however, he could have received the same sentence on remand. It follows that he cannot show that he would receive a lesser sentence on remand, so none of his substantial rights is affected.

The judgments of sentence is AFFIRMED.

* 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.

1 . Other circuits similarly have concluded that Blakely and Booker do not alter the plain meaning of "statutory maximum” as defined in waiver of appeal provisions in plea agreements. See United States v. West, 392 F.3d 450 (D.C.Cir.2004); United States v. Blick, 408 F.3d 162, 169 (4th Cir.2005); United States v. Luebbert, 411 F.3d 602, 603 (6th Cir.2005); United States v. Green, 405 F.3d 1180, 1191-94 (10th Cir.2005).

2 . Because Kennedy admitted to facts sufficient to sustain his sentence under Booker, his only remaining claim is that he nonetheless is entitled to be sentenced under an advisory, instead of mandatory, guideline regime. "Technically”, this is a "Fanfan error, not a Booker error.” United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.2005) (per curiam) (referring to Ducan Fanfan, the second defendant in the consolidated opinion in Booker). See United States v. Villegas, 404 F.3d 355, 364 (5th Cir.2005) (per curiam) (discussing the difference between Booker and Fanfan error).