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

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

AUNDRE MCKINNEY,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

m G-03-CR-06

______________________________

Before DAVIS, SMITH, and

DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Aundre McKinney appeals his sentence in

light of United States v. Booker, 125 S. Ct.

738 (2005). Because McKinney waived his

right to appeal as part of his plea agreement,

we dismiss the appeal.

I.

McKinney pleaded guilty to federal

narcotics charges pursuant to a cooperation

agreement with the government. In

consideration for the plea, the government

agreed not to oppose a three-level reduction

from the applicable base offense level, under

the sentencing guidelines, for McKinney’s

prompt acceptance of responsibility. The

agreement plainly states that McKinney was

not limiting the court’s consideration of his
2

“relevant conduct that relates specifically to

the controlled substance cocaine base for

which he [McKinney] may have been involved

in distributing during the life of the charged

offenses.” 

The government conditionally agreed 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 involved in the

offenses set forth in the indictment. The plea

agreement outlines McKinney’s understanding

of his sentencing exposure, noting that “the

sentence to be imposed is discretionary with

the sentencing judge and further [McKinney]

understands that if the sentencing judge

imposes a sentence up to the maximum 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 contains a provision waiving

McKinney’s right to appeal unless the district

court upwardly departed from the applicable

guidelines range:

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

defendant the right to appeal the sentence

imposed. Knowing that, the defendant

waives his rights to appeal and collaterally

attack his conviction or the sentence

assessed by the Court, unless the Court

upwardly departs from the guidelines.

Pursuant to recommendations in the presentence report (“PSR”), the district court

engaged in factfindingSSfor example, determining the total cocaine base for which

McKinneywasto be held responsibleSSthat 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 government 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 McKinney had rendered

substantial assistance to the government

pursuant to U.S.S.G. § 5K1.1. That motion

was granted, resulting in a sentence of 84

months.

In response to the PSR, McKinneyobjected

based on Blakely v. Washington, 124 S. Ct.

2531 (2004), which held a state sentencing

scheme unconstitutional under the Sixth

Amendment because it allowed a defendant to

receive a sentence higher than that based on

facts found by a judge and not admitted to by

the defendant or found by a jury. The district

court overruled 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. 

McKinney moves that the judgment of

sentence 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 infirmities in

the federal sentencing guidelines insofar as it

makes mandatory upward adjustments from

the maximum authorized sentence supported

by the facts established by a plea of guilty or

jury verdict, based on factsfound by a judge at
3

sentencing.1 The government counters with a

motion to dismiss the appeal on the ground

that by his plea agreement McKinney waived

the right to appeal any sentence that does not

exceed the statutory range and does not upwardly depart from the range established by

the guidelines.

II.

A.

A defendant may waive his statutory right

to appeal if the waiver is knowing and

voluntary.2 We apply normal principles of

contract interpretation when construing 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 the record of the Rule 11 hearing

clearly indicates that a defendant has read

and understands his plea agreement, and

that he has raised no question regarding a

waiver-of-appeal provision, the defendant

will be held to the bargain to which he

agreed, regardless of whether the court

specifically admonished himconcerning the

waiver of appeal.

Because McKinney indicated that he had read

and understood the plea agreement, which includes an explicit, unambiguous waiver of

appeal, the waiver was both knowing and

voluntary.

B.

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

the plain language of the plea agreement.

According to the language of the agreement,

appeal is waived “unless the Court upwardly

departsfromthe guidelines.” The exception is

not met, because no upward departure was assessedSSMcKinney was sentenced to 84

months, which is under the applicable

guidelines range as calculated by the district

court.

McKinney arguesthat an upward departure

was in fact assessed because Booker 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 allow him to avoid the appeal

waiver provision, because he wassentenced to

84 months, and he claims that the facts admitted in his guilty plea authorized a maximum

of only 57 months. 

Unfortunately for McKinney, however,

Booker does not change the definition of a

“guidelines range,” as he contends. Booker

only strikes down the mandatory application

of guidelinesrangesthat 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

admitted by a defendant; Booker 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 tailor sentences based on

other statutory concerns as well.4 Although

Booker influences the way the guidelines

ranges may be ultimately applied, it does not

contain any language changing the definition

of what an appropriate guidelines range is. 

Because the district court was still allowed

to calculate McKinney’s advisory guideline

range based on facts to which he did not admit

and that were not found by a jury beyond a

reasonable doubt, the range from which we

determine whether McKinney was granted an

upward departure (for the purpose of the

appeal-waiver provision) was 135 to 168

months. McKinney was sentenced to 84

months, which is no departure.5

Finally, McKinney is bound to his

obligations under the plea agreement; the

government has fulfilled all its own promises

and has been faithful to the agreement. As

promised, it did not object to the PSR’s

recommended three-level downward

adjustment for acceptance of responsibility,

and it moved for a downward departure for

substantial assistance.

The motion to remand is DENIED; the

motion to dismiss the appeal is GRANTED;

and the appeal is DISMISSED.6

4

See Booker, 125 S. Ct. at 756-57 (opinion

of 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 other

statutory 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

provisionSSan 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.