United States v. Leon, Mark

148 F. App'x 548

• Court: Court of Appeals for the Seventh Circuit
• Decided: September 6, 2005
• Docket: 04-3409
• Status: Unpublished

Opinion

ORDER

Mark Leon pleaded guilty to one count of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1), and was sentenced to 30 months’ imprisonment (to be served consecutively to an unexpired state sentence for battery) and three years’ supervised release. His plea agreement includes a waiver of his right to appeal the conviction or sentence, but Leon argues that the waiver is void under United States v. Hicks, 129 F.3d 376, 377 (7th Cir.1997), which observes (like many other opinions) that an appeal waiver is unenforceable if the sentence imposed exceeds the “statutory maximum.” The statute defining the penalties for this crime gives 10 years as the maximum term of imprisonment, 18 U.S.C. § 924(a)(2), but Leon contends that after Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the phrase “statutory maximum” means the upper end of the guideline range as calculated without reliance on any judicial fact-finding, and that under this interpretation his 30-month sentence exceeds the “statutory maximum.”

Both parties briefed this appeal well before the April 26 release of United States v. Bownes, 405 F.3d 634 (7th Cir.2005), which makes clear that the extension of Blakely to the guidelines in United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), changed nothing with respect to this court’s treatment of appeal waivers. See Bownes, 405 F.3d at 636-37. A waiver that would have been enforced before Booker will still be enforced now, even if it was negotiated without anticipating the change in sentencing procedure wrought by Booker. See id. at 637, 125 S.Ct. 738. Already three opinions and a number of unpublished orders have applied Bo wnes in rejecting attempts to raise a Booker claim despite a waiver of appeal. See, e.g., United States v. Lockwood, 416 F.3d 604, 608 (7th Cir.2005); United States v. Roche, 415 F.3d 614, 617 (7th Cir.2005) (“[Tjhere is nothing special about Booker that precludes enforcement of a waiver.”); United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir.2005) (“The plea agreement contained a waiver of Cieslowski’s right to appeal ‘any sentence within the maximum provided in the statute of conviction.’ We strictly enforce such waivers.”).

Lockwood expressly repudiates Leon’s “statutory maximum” argument and controls this case. The defendant in Lockwood, just like Leon, argued that a Sixth Amendment Booker error was a “ ‘fundamental error’ of the sort that may resur rect his right to appeal.” Lockwood, 416 F.3d at 608. We expressly acknowledged that being sentenced beyond the “statutory maximum” is one of several reasons why a waiver might be ignored. Id. (citing Bownes, 405 F.3d at 637). But we also made plain that none of the acknowledged exceptions to waivers was applicable in that case, id., which can only mean that the phrase “statutory maximum” as used in cases like Hicks has nothing to do with the upper end of a range under the sentencing guidelines. A majority of circuits already have rejected similar arguments. See, e.g., United States v. Maldonado, 410 F.3d 1231, 1233 (10th Cir.2005) (per curiam) (rejecting claim identical to Leon’s because “‘statutory maximum’ for purposes of [Tenth Circuit precedent articulating limits on the enforceability of appeal waivers] does not have the same meaning as that given by the Court in Blakely and extended to the sentencing guidelines by United States v. Booker”); United States v. Smith, 413 F.3d 778, 780-81 (8th Cir. 2005) (explaining that Blakely and Booker do not alter meaning of “statutory maximum” as used in language of appeal waivers); United States v. Bond, 414 F.3d 542, 546 n. 8 (5th Cir.2005) (same; citing cases); United States v. Blick, 408 F.3d 162, 169 n. 7 (4th Cir.2005) (same; citing cases).

Accordingly, we DISMISS Leon’s appeal.