United States v. Hackworth

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
_______________
m 04-10386
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LAWAYLON HACKWORTH,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:03-CR-324-4-H
______________________________

-- 1 of 3 --

2
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
PER CURIAM:*
Lawaylon Hackworth pleaded guilty of
conspiring to steal firearms from a federally li-
censed firearms dealer and to receive, possess,
conceal, and dispose of stolen firearms. The
plea agreement waived Hackworth’s right to
appeal his sentence except for “(a) a direct
appeal of (i) a sentence exceeding the statutory
maximum punishment, (ii) an upward depar-
ture from the guideline range deemed applica-
ble by the district court, or (iii) an arithmetic
error at sentencing, and (b) a claim of ineffec-
tive assistance of counsel.”
After departing downward two levels under
U.S.S.G. § 5K1.1, the district court sentenced
Hackworth to fifty-one months’ imprisonment,
a sentence within the applicable guideline
range and well below the statutory maximum
of five years. In his appeal, however,
Hackworth challenges the application of the
sentencing guidelines under Blakely v. Wash-
ington, 124 S. Ct. 2531 (2004), which we
construe as also a challenge under United
States v. Booker, 125 S. Ct. 738 (2005), which
was issued after Hackworth filed his brief.
Hackworth argues that his sentence was en-
hanced by facts found by the judge instead of
by a jury, in violation of Booker. Hackworth
framed his only issue on appeal as follows:
Facts used to increase a criminal defen-
dant’s sentence beyond an otherwise appli-
cable statutory maximum must be charged
by indictment and proven to a jury beyond
a reasonable doubt or established by judi-
cial confession. Here, the district court de-
parted upward from Hackworth’s statutory
maximum sentence on the basis of facts
neither found by a jury nor stipulated to by
Hackworth. Didn’t the district court re-
versibly err when enhancing Hackworth’s
sentence on the basis of such unproven
facts?
The government moved to dismiss on the
basis of the explicit waiver of appeal contained
in the plea agreement. Hackworth did not
oppose the motion. We granted it and dis-
missed the appeal.
After Booker was announced, Hackworth
filed a petition for writ of certiorari. The Su-
preme Court vacated and remanded for further
consideration in light of Booker. Hackworth v.
United States, 125 S. Ct. 1424 (2005). We re-
quested and received supplemental letter briefs
addressing the impact of Booker.
In its letter brief, the government argues
that the appeal should once again be dismissed
on the basis of the waiver of appeal contained
in the plea agreement. In his letter, Hack-
worth’s attorney makes no reference to the ap-
peal waiver and offers no explanation of why
the waiver should not be enforced.
We conclude that Hackworth is foreclosed
by the waiver from presenting his issues on
appeal. To the extent that his opening brief
can be deemed to present the argument that
the term “statutory maximum in an appeal
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

-- 2 of 3 --

3
waiver means the maximum sentence that can
be imposed without judge-made factfindings,
that issue is foreclosed by United States v.
Cortez, 2005 U.S. App. LEXIS 11418, at *2
(5th Cir. June 16, 2005) (per curiam) (on re-
hearing), in which this court held that “the
exception for a sentence imposed above the
statutory maximum shall be afforded its natural
and ordinary meaning of ‘the upper limit of
punishment that Congress has legislatively spe-
cified for violations of a statute” (citing United
States v. Rubbo, 396 F.3d 1330, 1334-35
(11th Cir. 2005); United States v. West, 392
F.3d 450, 460-61 (D.C. Cir. 2004)).1
The appeal is DISMISSED.
1 Accord 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).

-- 3 of 3 --