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

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GARY GENE KENNEDY,

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 SMITH, DEMOSS, and STEWART,

Circuit Judges.

PER CURIAM:

*

This court dismissed Gary Kennedy’s appeal of hissentence based on an appeal waiver

provision in his plea agreement. United States

v. Kennedy, 99 Fed. Appx. 557 (5thCir. 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 United States v.

Booker, 125 S. Ct. 738 (2005). Kennedy v.

United States, 125 S. Ct. 1016 (2005). We requested and received supplementalletter briefs

addressing the impact of Booker.

In his supplemental letter brief on remand,

Kennedy SS represented again by counsel SS

correctly perceives that the question at hand

regarding the appeal waiver is the following:

“Does a sentence that exceeds an unenhanced

guideline range constitute a sentence that exceeds the statutory maximum sentence, which

is what occurred in this case, or does thisrefer

only to increases over the statutory maximum

sentence located within the United States

Code?” Counsel wrote this letter on March 7,

2005, at which time he correctly observed the

following:

[The Fifth Circuit] has not addressed this

issue in the context of [Booker]. [It] has,

however, addressed this issue in the similar

context of appeal waivers and Blakely v.

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 Unfortunately, in unpublished opinions, this

Court has taken contradictory positions on

this issue. Compare United States v. Cortez, [120 Fed. Appx. 535 (5th Cir. Jan. 10,

2005) (per curiam)] to United States v.

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

10, 2005) (per curiam), cert. denied, 125 S.

Ct. 2285 (2005)].

Kennedy’s counsel urges that we “adopt the

holding in Cortez, where this Court, ‘in an

abundance of caution and because appellatewaiver provisions are to be construed against

the Government,’ considered the defendant’s

argument related to Blakely.” 

Unfortunately for Kennedy, however, the

Cortez panel granted rehearing and reversed

its position. See United States v. Cortez, 2005

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

2005) (per curiam) (on rehearing). In Cortez,

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.” Id. at *2. Citing United States v.

McKinney, 406 F.3d 744, 746-47 (5th Cir.

Apr. 15, 2005), the Cortez panelreasoned that

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

afforded its plain meaning in accord with the

intent of the parties at the time the plea agreement was executed.” Cortez, 2005 U.S. App.

LEXIS 11418, at *2. The court concluded

that there was “no indication that the parties

intended that the exception 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 United

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published

and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.
3

States 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 means “the upper

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

Id.1

In itsletter brief ofMarch 7, 2005, the government makes no reference to the waiver of

appeal. We assume, from this, that the 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

his waiver, which otherwise, under Cortez,

would require that the appeal be dismissed. 

We do note, however, that Kennedy raised

alleged Booker error for the first time in his

petition for writ of certiorari. We have recently held that, in the context of alleged Booker

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

for the first time in a petition for [writ of] certiorari.” United States v. Taylor, 2005 U.S.

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

2005) (per curiam).

There are no extraordinary circumstances

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

Kennedy concedes that no Sixth Amendment

objection was raised in the district court. See

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

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

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

may not correct an error the defendant failed

to raise in the district court unless there is

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

substantialrights.’” Id. (quoting United States

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

In its supplemental 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

that he would receive a lesser sentence on

remand, so none of his substantial rights is

affected.

The judgments ofsentence is AFFIRMED.

1

 Other circuits similarly have concluded that

Blakely and Booker do not alter the plain meaning

of “statutory maximum” as defined in waiver of

appeal provisions in plea agreements. See United

States v. West, 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); United

States v. Luebbert, 2005 U.S. App. LEXIS 9972,

at *3 (6th Cir. June 1, 2005); United 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 claim is that he nonetheless is entitled to

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

“Fanfan error, not a Booker error.” United States

v. Martinez-Lugo, 2005 U.S. App. LEXIS 10432,

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

consolidated opinion inBooker). SeeUnited States

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

curiam) (discussing the difference between Booker

and Fanfan error).