United States v. Grad

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
November 9, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-10911
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATTHEW LEE GRAD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-44-ALL-L
USDC No. 3:04-CR-122-ALL
--------------------
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Matthew Lee Grad appeals the sentence imposed following his
guilty-plea conviction for three counts of bank robbery in
violation of 18 U.S.C. § 2113(a) & (d). He argues that the
waiver of appeal provision in his plea agreement does not bar his
appeal because he reserved the right to appeal a sentence
exceeding the statutory maximum punishment. In United States v.
Bond, 414 F.3d 542, 545-46 (5th Cir. 2005), we determined that
there was no indication in the plea agreement that the parties
meant for the term “statutory maximum” to be accorded the

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No. 04-10911
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definition used in United States v. Booker, 125 S. Ct. 738
(2005). Bond, 414 F.3d at 545-46. We therefore applied the
usual and ordinary meaning of the term, i.e., “the upper limit of
punishment that Congress had legislatively specified for
violation of a statute.” Id.
In light of Bond, we interpret the virtually identical
appeal waiver in the instant case as using the usual and ordinary
meaning of the term “statutory maximum” to mean the upper limit
of punishment specified by Congress in enacting the statute under
which Grad was convicted, 18 U.S.C. § 2113(a) & (d). See id.
Because Grad’s 84-month sentence did not exceed the 25-year
statutory maximum sentence for Grad’s offenses, the exception to
the waiver of appeal provision does not apply to Grad’s appeal.
18 U.S.C. § 2113(d). Therefore, Grad’s appeal of his sentence is
barred by the appeal waiver, and Grad’s appeal is DISMISSED.
Because Grad waived the right to appeal his sentence, we need not
address his Sixth Amendment claim relating to his sentence.
APPEAL DISMISSED.

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