United States Court of Appeals

Fifth Circuit



## FILED

June 21, 2005

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 03-11334

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### G ARY 

### G ENE 

### K

ENNEDY



### ,

Defendant-Appellant.



### _________________________

Appeal from the United States District Court

for the Northern District of Texas



### m 7:03-CR-3-ALL

______________________________2

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before S MITH , D E M OSS , and S TEWART

, Circuit Judges.

P ER C URIAM : *

This cou rt dismissed Gary Kennedy’s appeal of his sentence based on an appeal waiver

provision in his plea agreement. U nited States

v. Kennedy

, 99 Fed. Appx. 557 (5th Cir. 2004)

(per curiam). We granted Kennedy’s attorney’s motion to withdraw pursuant to Anders

v. California

, 386 U.S. 738, 744 (1967). The

Supreme Court vacated and remanded for further consideration in

light of U

nited States v.

B ooker

, 125 S. Ct. 738 (2005). K en nedy v.

United States

, 125 S. Ct. 1016 (2005). We requested and received supplemental letter briefs

addressing the impact of Booker

.

In his supplemental letter brief on remand,

Kennedy 

### SS

represented again by counsel 

### S S

correctly perceives that the question at hand

regarding the appeal waiver is th e fo llowing:

“Does a sentence that exceeds an unenhanced

guideline ran g e constitute a sentence that exceeds the statutory maximum sentence, which

is what occurred in this case, or does this refer

only to increases over the statutory maximum

sentence located within the United Sta tes

Code?” Counsel wrote this letter on March 7,

2005, at which time he correctly observed the

following:

[The Fifth Circuit] ha s not addressed this

issue in th e context of [ B ooker ]. [It] has, however, addressed this issue in the similar

context of app e al waivers and Blakely v.

Washington , 124 S. Ct. 2531 (2004). Unfortunately, in unpublished opinio ns, this

Court has taken contradi ctory positions on

this issue. Compare United States v. Cortez

, [120 Fed. Appx. 535 (5th Cir. Jan. 10,

2005) (per curiam)] to Unit ed States v.

Berger

, [119 Fed. Appx. 658 (5th Cir. Jan.

10, 2005) (per curiam), cert. denied

, 125 S.

Ct. 2285 (2005)].

K e nnedy’s counsel urges that we “adopt the

ho lding in C

ortez

, where this Court, ‘in a n

abundance of ca ut ion and because appellatewaiver provisions are to be construed against

the Go vernment,’ considered the defendant’s

argument related to Blakely .”

Unfortunatel

y for Kennedy, however, the

Cortez panel granted rehearing and reversed

its position. S ee United States v. Cortez

, 2005

U.S. App. LEXIS 11418 (5th Cir. J une 16,

2005) (per curiam) (on rehearing). In C ortez

, the defendant “argue[d] that he did not waive

the right to appeal a sentence above the statutory maximum as that term was defined in

Blakely

. ” I

d. at *2. Citing U

nited States v.

McKinney

, 406 F.3d 744, 746 -47 (5th Ci r.

Apr. 15, 2005), the Cortez panel reasoned that

“[t]he language in the appellate waiver must be

afforded its plain meaning in accord wi th the

intent of the parties at the time the plea agreement was executed.” C

ortez

, 2005 U.S. App.

LEXIS 11418, at *2. The court concluded

that there was “no indication that the parties

intended that the e xception in the appellate

waiver for ‘a sentence exceeding the statutory

maximum punishment’ would have a meaning

other than its ordinary and natural meaning.”

Id. (citations omitted). Thus, citing U nited * Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published

and is not precedent exc ept under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4.3

Stat e s v. Rubbo

, 396 F.3d 1330, 1334-35

(11th Cir. 2005), the Cortez panel reasoned

that in this context, the term “statutory maximum” in an appeal waiver m eans “the upper

limit of punishment that Congress has legislativ ely specified for violations of a statute.”

Id. 1

In its letter brief of March 7, 2005, the government makes no reference to the waiver of

appeal. We assume, from this, t hat t he government does not insist that the appeal waiver

be enforced in this case. Only because of that

circumstance, and because appeal waivers are

not jurisdictional, we will not hold Kennedy to

h is waiver, which otherwise, under C ortez

, would require that the appeal be dismissed.

We do note, however, that Kennedy raised

a lleged B ooker error for the first time in his

petition for writ of certiorari. We have recently held that, in the contex t o f alleged B ooker

error, and “absent extraordinary circumstances, [ we will not] consider an argument raised

for the first time in a petition for [writ of] certiorari.” U

nited States v. Taylo r , 2005 U.S.

App. LEXIS 8701, at *3 (5th Cir. May 17,

2005) (per curiam).

There are no extrao r dinary circumstances

here. If we were to consider Kennedy’s issues, we would review for plain error, because

Kennedy concedes that no Sixth Amend ment objection was raised in the district court. S ee

United States v . Mares , 402 F.3d 511, 520

(5th Cir. 2005), p etition for cert. filed (Mar.

31, 2005) (No. 04-9517). “An appellate court

may not correct an error t he defendant failed

to raise in the district court unless there is

‘(1) error, (2) that is plain, and (3) that affects

substantial rights.’” I

d. (quoting United States

v. Cotton , 535 U.S. 625, 631 (2002)).

In its supple mental brief, the government

concedes plain error “in light of Booker .” 2

Based solely on facts Kennedy admitted, however, he could have received the same sentence

on remand. It follows that he cannot show

t hat he would receive a lesser sentence on

remand, so none of his sub st antial rights is

affected.

The judgments of sentence is AFFIRMED.

1 Other cir cuits similarly have concluded that

Blakely and Booker do not alter the plain meaning

of “statutory maximum” as defined in wa iver of

appeal provisions in plea agreements. See United

States v. W

est , 392 F.3d 450 (D.C. Cir. 2004);

United States v. Blick

, 2005 U.S. App. LEXIS

9742, at *19 (4th Cir. May 27, 2005); U nited

States v. Luebbert

, 2005 U.S. App. LEXIS 9972,

at *3 (6th Cir. June 1, 200 5); U nited States v.

Green

, 405 F.3d 1180, 1191-94 (10th Cir. 2005). 2 Because Kennedy admitted to facts sufficient

to sustain his sentence under Booker , his only remaining clai m is that he nonetheless is entitled to

be sentenced under an advisory, instead of mandato r y, guideline regime. “Technically, this is a

“ Fanfan error, not a Booker error.” U nited States

v. Martinez-Lugo

, 2005 U.S. App. LEXIS 10432,

at *5 (5t h Cir. June 7, 2005) (per curiam) (referring to Ducan Fanfan, the second defendant in the

consolidated opinion in Booker ). S ee United States

v. Villegas

, 404 F.3d 355, 364 (5th Cir. 2005) (per

curiam) (discussing the difference between Booker

and Fanfan error).