United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued March 1, 2006

Decided April 13, 2006

Before

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 05-1051

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANK M. PANOZZO, 

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District of Illinois,

Western Division.

No. 03 CR 50067-1

Philip G. Reinhard, 

Judge.

O R D E R

Frank Panozzo pleaded guilty to three counts of stealing a firearm from a

licensed dealer, 18 U.S.C. § 924(m). As part of his plea agreement Panozzo agreed

to have his sentence determined using the Sentencing Guidelines as mandatory. 

The district court sentenced Panozzo to concurrent terms of 56 months’

imprisonment on all three counts, the middle of the mandatory Guideline range. 

Despite his plea agreement Panozzo attacks his sentence under United States v.

Booker, 543 U.S. 220 (2005). We affirm.

In 2004, a grand jury indicted Panozzo on three counts of stealing a firearm

from a licensed dealer and three counts of being a felon in possession of a firearm. 

Panozzo pleaded guilty to the three theft charges pursuant to a written plea

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-1051 Page 2

agreement. At the time Panozzo entered into his plea agreement the Supreme

Court had granted certiorari for review of this court’s decision in United States v.

Booker, 375 F.3d 508 (7th Cir. 2004). Panozzo’s attorney explained to him the

potential ramifications of Blakely v. Washington, 542 U.S. 296 (2004), and in the

plea agreement Panozzo acknowledged “that he may be entitled to have any

disputed sentencing fact which could increase his sentence determined at a jury

trial under a proof beyond a reasonable doubt standard.” Nonetheless Panozzo

agreed “[t]o have his sentence determined under the Sentencing Guidelines,” and to

have the district court determine his sentencing facts. At the change of plea

hearing, the district court confirmed that Panozzo understood that he agreed to be

sentenced under the Guidelines “as mandatory” and that the court would determine

the sentencing factors. On appeal Panozzo does not challenge the district court’s

calculation of the Guideline range.

Panozzo argues in his opening brief that the district court impermissibly

sentenced him using the mandatory Guidelines and asks for a full remand for

resentencing, citing the Supreme Court’s decision in Booker. After his opening brief

was filed, we decided United States v. Berheide, 421 F.3d 538 (7th Cir. 2005),

holding that a defendant is bound by the concessions made in his plea agreement

and has waived any right to benefit from subsequent changes in the law. In his

reply brief, Panozzo recognizes that Berheide appears to control his case but argues

that Berheide was wrongly decided. In the alternative he argues that his case can

be distinguished from Berheide because Panozzo retained the right to appeal an

incorrect application of the mandatory Guidelines.

Panozzo contends that no one could have anticipated that the Guidelines

would become advisory and therefore, contrary to the holding in Berheide, it was

not possible for individuals to knowingly waive the right to be sentenced under an

advisory Guidelines system. The risk of the unknowable is inherent in all contracts

and a plea agreement is no different. See United States v. Bownes, 405 F.3d 634,

636 (7th Cir. 2005). Panozzo agreed in his plea agreement that the Guidelines

would determine his sentence based on the district court’s determination of the

sentencing factors. Panozzo is bound by this promise and has waived the right to

any benefit from subsequent changes in the law whether or not they could be

foreseen. See Berheide, 421 F.3d at 542; Bownes, 405 F.3d at 636-37.

Panozzo attempts to distinguish between a constitutional Booker error and a

statutory error in applying the Guidelines as mandatory. He argues that, even if he

has waived his constitutional Booker claim, he has not waived his statutory right to

be sentenced under an advisory Guideline system. But at the time Panozzo agreed

to be sentenced under the Guidelines they were applied as mandatory, see 18 U.S.C.

§ 3553(b)(1), and the plain language of his plea agreement makes no distinction

between constitutional and statutory errors. He agreed in the plea agreement that
No. 05-1051 Page 3

he would “have his sentence determined under the Sentencing Guidelines” and he

confirmed at the change of plea hearing that he understood the district court would

use “the guidelines as mandatory by agreement of the lawyers.” His situation is not

different than Berheide’s or Bownes’ simply because he preserved the right to

appeal an incorrect application of the Guidelines. He is not asking us to correct an

error in calculating his Guideline range; he is asking us to allow him the benefit of

Booker. But Panozzo explicitly waived his right to that benefit. 

Accordingly, we AFFIRM Panozzo’s sentence.