United States v. Stephens

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 13, 2006
• Docket: 05-10917
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 13, 2006

Charles R. Fulbruge III Clerk No. 05-10917 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KRAIG STEPHENS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:04-CR-160-ALL --------------------

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Kraig Stephens

raises arguments that are foreclosed by United States v. Cortez,

413 F.3d 502, 503 (5th Cir.), cert. denied, 126 S. Ct. 502

(2005), which held that the defendant’s appeal waiver barred a

claim that the sentence exceeded the statutory maximum as that

term was defined in Blakely v. Washington, 542 U.S. 296 (2004),

and by United States v. Scroggins, 411 F.3d 572, 575-76 (5th Cir.

2005), which held that the Due Process Clause does not bar 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-10917 -2-

application of Justice Breyer’s remedy opinion in United States

v. Booker, 543 U.S. 220 (2005), when resentencing defendants in

light of Booker. The Government’s motion for summary affirmance

is GRANTED, and the judgment of the district court is AFFIRMED.