United States Court of Appeals

Fifth Circuit 

## FILED

April 15, 2005

Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 04-41223

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### A UNDRE 

### M C 

### K

INNEY



### ,

Defendant-Appellant



### .

_________________________

Appeal from the United States District Court

for the Southern District of Texas



### m G-03-CR-06

______________________________

Before D AVIS

, S MITH , and

D ENNIS , Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

Aundre McKin ney appeals his sentence in ligh t of U

nited States v. Booker

, 125 S. Ct.

738 (2005). Because McKinney waived his right to appeal as part of his p lea agreement, we dismiss the appeal. I. McKinney pl e aded guilty to federal

narcotics charges pursuant to a cooperati on agreement with the governme n t. In

consideration for the plea, the government agreed not to oppose a thre e-level reduction

from the applicable base offense level, u nder

the sentencing guidelines, for McKinney’s
prompt acceptance of re spo nsibility. The
agreement plainly state s t hat McKinney was

not lim it ing the court’s consideration of his2

“relevant conduct that relates specifically to

the controlled substance cocain e base for

which he [McKinney] may have been involved

in distributing during t he life of the charged

offenses.”

The government conditionally agr eed to

recommend a downward departure under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) if McKinney cooperated in the investigation

and/or prosecution of others i n volved in the

offenses set forth in the indictment. The plea

agr eement outlines McKinney’s understanding

of his sentencing exposure, not ing that “the

se n tence to be imposed is discretionary with

the sentencing judge and further [McKinney]

understands t hat if the sentencing judge imposes a sentence up to the ma ximum established by

statute, [McKinney] cannot for

that reason alone, withdraw his guilty plea and

will remain bound by all the obligations of this agreement.”

The agreement specifically notes the

maximum sentence available for the offense to
which McKinney pleaded guilty. Importantly,

the agreement contai ns a provision waiving McKinney’s right to appeal unless the district

c o urt upwardly departed from the applicable guidelines range:

The defendant is aware that Title 18, United States Code, Section 3742 a ffords a

defendant the right to appeal t he sentence imposed. Knowing that, the defendant

waives his rights to appeal and collaterally

at t ack his conviction or the sentence

assessed by the Court, unless the Court upwardly departs from the guidelines.

Pursua nt to recommendations in the presentence r e port (“PSR”), the district court

e ngaged in factfinding 

### SS for example, det e

rmini ng t he total cocaine base for which McKinney was to be held responsible 

### SS that increased the applicable sentencing range under

the guidelines. The court adopted the PSR’s

recommendation to give McKinney a threelevel downward adjustment for acceptance of responsibility, to which the governmen t did not object.

The resulting sentencing range was 135 to

168 months’ imprisonment. The government
made a motion for downward departure on the ground that McKi nney had rendered

substantial assistance to t he government
pursuant to U.S.S.G. § 5K1.1. That m oti on

was granted, resulting in a sentence of 84

months.

In response to the PSR, McKinney objected

based on B lakely v. Washington , 124 S. Ct.

2531 (2004), which held a s t ate sentencing

scheme unco nst itutional under the Sixth

Amendment because it allowed a defendant to
receive a sentence higher th a n that based on facts found by a judge and not admitted to by

the defendant or found by a jury. The district

court ov erruled McKinney’s objections

because of United States v. Pineiro , 377 F.3d

464 (5th Cir. 2004), vacated

, 125 S. Ct. 1003 (2005), which held that Blakely does not apply to the federal sentencing guidelines.

McKinne y moves that the judgment of

se nt ence be vacated and remanded for resentencing in light of Booker

, 125 S. Ct. at

746 (opinion of Stevens, J.), which held that Blakely extends to constitutional infirmit ies in

the federal sentencing guidelines insofar as it

makes m andatory upward adjustments from

the maximum authorized se ntence supported by the facts established by a p lea of guilty or jury verdict, based on facts found by a judge at3

sentencing. 1 The government counters with a

motion to dismi s s the appeal on the ground

that by his plea agreement McKin ney waived the right to appeal any sentence that does not

exce e d the statutory range and does not upwardly depart from t he range established by the guidelines.

II.

A.

A defendant may waive his sta tutory ri ght

to appeal if the waiver is knowing and voluntary. 2 We apply normal principles of

contract interpretation when co n struing plea
agreements. 3

McKinney does not allege, and there is no indication in the record, that his ratification of

the plea agreement was anything but knowing and voluntary. As we stated in United States

v. Portillo , 18 F.3d 290, 293 (5th Cir. 1994):

[W]hen t he record of the Rule 11 hearing clearly indicates that a

defendant has read

and understands his plea agreement, a n d that he has rais ed no question regarding a waiver-of-appeal provision, the defendant

will be held to the bar gain to which he

agre ed, regardless of whether the court specifically admonished him concerning the waiver of appeal.

Because McKinney indicated that he had read

and understood the plea agreement, which includes an explicit, unambiguous waiv er of appeal, the waiver was both knowing and voluntary.

B.

We must determine whether the waiver applies to th e circumstances at hand, based on

t he plain language of the plea agreement

. According to th e language of the agreement, appeal is waived “unless the Court upwardly departs from the guidelines.” The exception is

not met, because no upward departure was ass essed 

### S S McKinney was sentenced to 84 months, which is under the applicable guidelines range as calculated by the district

court.

McKinney argues that an upward departure

was in fact ass essed because B ooker dictates

that a guidelines calculation may be made based only on facts admitted by the defendant

or found by a jury beyond a reasonable doubt. Assuming arguendo that McKinney’s calculations are correct, this definition of “guidelines range” would allo w him to avoid the appeal

waiver provision, because he was sentenced to
84 mo nt hs, and he claims that the facts admitted in his guilty plea authorized a maximum of only 57 months.

Unfortunately for M c Kinney, however,

Booker d oes not change the definition of a “guidelines range,” as he contends. B ooker only strikes down the mandat o ry application

of guidelines ranges that are based on facts not 1 In his objection, McKinney claimed that the

district court was authorized to sentence him to only 46-57 months, based on facts solely contained in his guilty plea.

2 See United States v. Robinson , 187 F.3d 516, 517 (5th Cir. 1999); United States v. Portillo , 18 F.3d 290, 292 (5th Cir. 1994) (“To be valid, a defendant’s waiver of his right to appeal must be informed and voluntary. A defendant must know that he had a ‘right to appeal his sentence and that he was giving up that right.’”) (citing United States v. Melancon , 972 F.2d 566, 567-68 (5th Cir. 1992)).

3 United States v. Cantu , 185 F.3d 298, 304 (5th Cir. 1999) (“[W]e apply general principles of contract law in order to interpret the terms of the plea agreement.”)4

found by a jury beyond a reasonable doubt or

admitte d by a defendant; B ooker not only

allows a district court to find facts and

calculate guidelines ranges, but requires a

court to calculate and consider them, although

a court may now tailo r sentences based on

other statutor y co ncerns as well. 4 Although

B ooker influences the way the guidelines

ranges may be ult ima

t ely applied, it does not

contain any lan guage changing the definition of what an appropriate guidelines range is.

Because the district court was still allowed

to calcul a te McKinney’s advisory guideline

range based on facts to which he did not admit

a nd that were not found by a jury beyond a

reasonable doubt, the range from which we determine whether McKinney was granted an upward dep a rture (for the purpose of the appeal-waiver provision) was 135 to 168

m onths. McKinney was sentenced t o 84 months, which is no departure. 5

Finally, McKin ney is bound to his obligation s under the plea agreement; the
government has fulfilled all its own promises

a nd has been faithful to the agreement . As promised, it did not object to the PSR’s

recommended t hree-level downward adjustment for acceptance of responsibility,

and it moved for a downward departur e for

substantial assistance.

The mo t ion to remand is DENIED; the

motio n t o dismiss the appeal is GRANTED; and the appeal is DISMISSED. 6

4 See Booker , 125 S. Ct. at 756-57 (opinionof Breyer, J.) (holding that severing the unconstitutional provisions of the guidelines renders them “advisory” and “ requires a sentencing court to consider Guidelines ranges, . . . but it permits the court to tailor the sentence in light of otherstatutory concerns as well . . .”) (emphasis added); see also United States v. Mares, 2005 U.S. App. LEXIS 3653, at *19 (5th Cir. Mar. 4, 2005) (“[The] duty to consider the Guidelines will ordinarily require the sentencing judge to determine the applicable Guidelines range even though the judge is not required to sentence within that range. The Guideline range should be

determined in the same manner as before Booker/Fanfan . Relatedly, Booker contemplates that, with the mandatory use of the Guidelines excised, the Sixth Amendment will not impede a sentencing judge from finding all facts relevant to sentencing.”). 5 We thus agree with two other circuits that have reached the same conclusion, i.e., that Blakely and Booker

do not alter the plain meaning of appeal-waiver provisions in valid plea

agreements. See United States v. Rubbo , 396 F.3d 1330 (11th Cir. 2005); see also United

States v. West , 392 F.3d 450 (D.C. Cir. 2004). Both cases rejected the argument that Blakely and its progeny altered the meaning of “statutory maximum” for the purposes of an appeal-waiver provision SS

an argument not advanced by McKinney. See Rubbo, 396 F.3d at 1334-35;

see also West , 392 F.3d at 460.

6 The government’s motion to extend the time for filing its brief is DENIED as unnecessary.