United States v. Bond

United States Court of Appeals
Fifth Circuit
F I L E D
June 21, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
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m 04-41125
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CASEY EVERETT BOND,
Defendant-Appellant
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
______________________________
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Casey Bond appeals his sentence in light of
United States v. Booker, 125 S. Ct. 738
(2005).1 Although Bond pleaded guilty pursu
ant to a plea agreement that included an
appeal-waiver provision, he argues that he is
still has the right to appeal by virtue of a pro-
vision in the agreement that authorizes appeal
of sentences exceeding the “statutory maxi-
mum.” He reasons that Booker changes the
definition of “statutory maximum” to the maxi-
1 Bond’s briefs actually argue in terms of
Blakely v. Washington, 124 S. Ct. 2531 (2004).
(continued...)
1(...continued)
We update his argument in light of Booker, which
extended the Blakely holding to the United States
Sentencing Guidelines.

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mum term of incarceration that is authorized
by facts admitted to by the defendant or found
by a jury beyond a reasonable doubt. Because,
however, post-Booker, “statutory maximum”
assumes its ordinary definition of the max-
imum term of imprisonment authorized by the
statute of conviction for purposes of a plea
agreement, and because Bond was sentenced
below the statutory maximum as so defined,
we dismiss the appeal as barred by the valid
plea agreement.
I.
Bond pleaded guilty to one count of pos-
session of a firearm by a felon, in violation of
18 U.S.C. § 922(g)(1) and one count of pos-
session with intent to distribute less than 50
kilograms of marihuana, in violation of 21
U.S.C. § 841(a)(1). According to his written
plea agreement, he waived the right to appeal,
as follows:
Except as otherwise provided in this agree-
ment, the Defendant expressly waives the
right to appeal the sentence on all grounds,
including an appeal of sentencing pursuant
to 18 U.S.C. 3742. The Defendant further
agrees not to contest sentencing in any post
conviction proceeding including, but not
limited to, a proceeding under 28 U.S.C.
2255. The Defendant, however, reserves
the right to appeal the following: (a) any
punishment imposed in excess of the statu-
tory maximum; (b) any upward departure
from the guidelines range deemed most ap-
plicable by the sentencing court; (c) arith-
metic errors in the guidelines calculations;
and (d) a claim of ineffective assistance of
counsel that affects the validity of the waiv-
er itself. The Defendant knowingly and
voluntarily waives any right to appeal in
exchange for the concessions made by the
Government in this agreement and with full
understanding that the Court has not deter-
mined the sentence.
Bond was explicitly advised in the plea agree-
ment that he could receive a maximum of ten
years’ imprisonment on count one and a maxi-
mum of five years on count two.
Pursuant to recommendations in the presen-
tence report, the district court engaged in fact-
findingSSdetermining that Bond had possessed
the firearm in connection with another felony,
possession with the intent to distribute mari-
huanaSSthat increased the applicable sentenc-
ing range under U.S.S.G. § 2K1.1(b)(5). The
resulting range was 24 to 30 months’ impris-
onment, and Bond was sentenced at the bot-
tom of the range, to 24 months.
In response to the PSR, Bond objected
based on Blakely, which held a state sentenc-
ing 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 Bond’s objections based on
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.
Bond argues that his sentencing is infirm
under Booker because it is based in part on
facts that he neither admitted to, nor were
found by a jury beyond a reasonable doubt.2
The government, to the contrary, asserts that
we should dismiss the appeal on the ground
that by his plea agreement, Bond waived the
right to appeal his sentence.
2 Bond claims that the fact that he admitted to in
his guilty plea authorized only a maximum sen-
tence of eighteen months under the guidelines.

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II.
To determine whether an appeal of a sen-
tence is barred by an appeal waiver provision
in a plea agreement, we conduct a two-step
inquiry: (1) whether the waiver was knowing
and voluntary and (2) whether the waiver ap-
plies to the circumstances at hand, based on
the plain language of the agreement. See Unit-
ed States v. McKinney, 406 F.3d 744, 746-47
(5th Cir. 2005). Under this test, Bond has
waived appeal.
A.
A defendant may waive his statutory right
to appeal his sentence if the waiver is knowing
and voluntary.3 Bond does not allege, and
there is no indication in the record, that his rat-
ification of the plea agreement was anything
but voluntary. Because he indicated that he
read and understood the agreement, which
includes an explicit, unambiguous waiver of
appeal, the waiver was both knowing and
voluntary.4
B.
Bond does not contest that the waiver lan-
guageSSwaiving the right to appeal “on all
grounds, including an appeal of sentencing
pursuant to 18 U.S.C. [§] 3742”SSis broad
enough to cover an appeal based on Booker
and its progeny. Rather, notwithstanding that
broad wording, Bond argues that he is permit-
ted to appeal his sentence because, he claims,
the explicit exception for “any punishment im-
posed in excess of the statutory maximum” is
met in this case.
In defining “statutory maximum,” Bond
looks to Blakely, later quoted in Booker: “Our
precedents make clear, however, that the ‘stat-
utory maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely
on the basis of the facts reflected in the jury
verdict or admitted by the defendant.”5 As-
suming arguendo that Bond’s calculations are
correct, this definition of “statutory maximum”
would allow him an escape from the appeal
waiver provision, because he was sentenced to
24 months, and he claims that the facts admit-
ted in his guilty plea authorized a maximum of
only 18 months.
Unfortunately for Bond, however, as as-
tutely observed in United States v. Rubbo, 396
F.3d 1330, 1334-35 (11th Cir. 2005), the term
“statutory maximum” for purposes of Blakely
and Booker has a meaning and import that is
significantly different from its meaning for
purposes of Bond’s appeal waiver, when the
context in which the terms are used is carefully
scrutinized.6 “In the Apprendi/Booker line of
3 McKinney, 406 F.3d at 746 (citing 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 volun-
tary. 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)).
4 See McKinney, 406 F.3d at 746 (citing Por-
tillo, 18 F.3d at 293 (“[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 him
concerning the waiver of appeal.”)).
5 Blakely, 124 S. Ct. at 2537 (emphasis omit-
ted); see also Booker, 125 S. Ct. at 749; Apprendi
v. New Jersey, 530 U.S. 466 (2000).
6 Towne v. Eisner, 245 U.S. 418, 425 (1918)
(continued...)

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decisions, the Supreme Court used the term
‘statutory maximum’ to describe the parame-
ters of the rule announced in those decisions,
a rule that had nothing to do with the scope of
appeal waivers.” Id. at 1334. In that context
it was used in a “specialized,” “non-natural”
sense, used “not only for semantic convenience
but also in order to justify and explain the
holdings the Court entered in those decisions.”
Id. “Everyone knows that a judge must not
impose a sentence in excess of the maximum
that is statutorily specified for the crime. By
labeling a sentence that the judge may not
impose under the Apprendi/Booker doctrine as
one in excess of the ‘statutory maximum’ the
Court may have sought to call into play that
well-known principle of law.” Id. (internal
citations omitted).
We must interpret the plea agreement like
a contract, in accord with what the parties in-
tended.7 There is no indication that they
meant for the term “statutory maximum” to be
accorded the non-natural definition it assumed
in Blakely and Booker. In the absence of evi-
dence that the parties to the agreement intend-
ed such a specialized, non-natural definition,
we apply the term’s usual and ordinary mean-
ing, “the upper limit of punishment that Con-
gress has legislatively specified for violation of
a statute.” Id. at 1334-35.
This is the approach taken most recently by
this court in United States v. Cortez, 2005
U.S. App. LEXIS 11418 (5th Cir. June 16,
2005) (per curiam) (on rehearing). Cortez “ar-
gue[d] that he did not waive the right to ap-
peal a sentence above the statutory maximum
as that term was defined in Blakely.” Id. at
*2. Citing McKinney, 406 F.3d at 746-47, the
Cortez panel reasoned 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 indica-
tion that the parties intended that the exception
in the appellate waiver for ‘a sentence exceed-
ing the statutory maximum punishment’ would
have a meaning other than its ordinary and
natural meaning.” Id. (citations omitted).
Thus, citing Rubbo, 396 F.3d at 1334-35, 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 viola-
tions of a statute.” Id.
The same result obtains here. Under the
ordinary definition of “statutory maximum,”
Bond has a maximum sentence of 10 years on
count one and 5 years on count two. Because
his sentence of 24 months does not exceed
either of those amounts, that exception to his
appeal waiver is not met, and the blanket pro-
hibition of appeal applies.8 And, because Bond
waived his right to appeal his sentence under
6(...continued)
(Holmes, J.) (“A word is not a crystal, transparent
and unchanged, it is the skin of a living thought and
may vary greatly in color and content according to
the circumstances and the time in which it is
used.”).
7 See United States v. Davis, 393 F.3d 540, 546
(5th Cir. 2004).
8 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).

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the present circumstances, we do not need to
address his Sixth Amendment argument.
The appeal is DISMISSED.

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