*

 This appeal originally was consolidated for purposes of briefing and

disposition with United States v. Frank Duran, No. 03-2506, but we later severed

the two cases. After an examination of the briefs and the record, we have concluded

that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and

the record. See Fed. R. App. P. 34(a)(2). 

1 Circuit Judge Kenneth F. Ripple was originally a member of the panel

assigned to this case. Due to a change in circumstances, Judge Ripple has decided

to recuse himself from further proceedings in this matter. 

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted July 13, 2005*

Decided July 28, 2005

Before

Hon. JOEL M. FLAUM, Chief Judge 1

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 03-2968

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID DURAN,

Defendant-Appellant.

Appeal from the United States

District Court for the Northern

District of Illinois, Eastern Division

No. 01 CR 757

Ronald A. Guzman,

Judge.

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 03-2968 Page 2

O R D E R

David Duran, his brother Frank, and several others were part of a drug

conspiracy responsible for distributing cocaine and marijuana in Chicago. Duran

pleaded guilty pursuant to a written plea agreement to two of the 16 counts charged

against him—conspiring to possess with the intent to distribute and to distribute

controlled substances, 21 U.S.C. §§ 846, 841(a)(1), and possessing a firearm in

furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)—and agreed to

testify against his brother. As part of the plea agreement Duran waived his right to

appeal his sentence in exchange for concessions by the government. He received a

downward departure under U.S.S.G. § 5K1.1 for his cooperation, and was sentenced

to a total of 336 months’ imprisonment for both counts, the precise term

contemplated by the plea agreement.

Despite his waiver Duran appeals, arguing that the district court erred by

sentencing him under the formerly mandatory guidelines regime, see United States

v. Booker, 125 S. Ct. 738 (2005), and contending that a limited remand is warranted

under United States v. Paladino, 401 F.3d 471 (7th Cir. 2005). We cannot reach

that issue, however, because his appeal waiver is enforceable. Nothing in Duran’s

plea agreement provides an “escape hatch” enabling him to appeal if the law

changed to his benefit, and, as we held after Duran filed his brief, Booker does not

invalidate the parties’ bargain where there is no such express provision. See

United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005); see also United States

v. Roche, No. 04-1475, 2005 WL 1618816, at *2 (7th Cir. July 11, 2005); United

States v. Cieslowski, 410 F.3d 353, 362 (7th Cir. 2005). Our opinion in United

States v. Loutos, 383 F.3d 615 (7th Cir. 2004), which does not discuss the effect of

the appeal waiver in that case, cannot be read as inconsistent with Bownes. 

Finally, we note that Booker, in any event, does not undermine bargained-for,

lawful sentences like Duran’s that were imposed by the district court pursuant to

Federal Rule of Criminal Procedure 11(c)(1)(C). See Cieslowski, 410 F.3d at 363-64.

Duran’s appeal is DISMISSED.