United States of America v. Robert Ross

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, this appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
(Submitted August 31, 2005*)
Decided September 1, 2005
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 04-1788
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT ROSS,
Defendant-Appellant.
Appeal from the United States
District Court for the
Northern District of Illinois,
Eastern Division.
No. 00 CR 690
Charles R. Norgle, Sr., Judge.
O R D E R
Robert Ross pleaded guilty to one count of distributing cocaine base, 21 U.S.C.
§ 841(a)(1). In his written plea agreement, Ross waived his right to appeal “any
sentence within the maximum provided in the statute of conviction (or the manner in
which that sentenced was determined), in exchange for concessions made by the United
States.” The district court, applying the sentencing guidelines as mandatory,
calculated a range of 168 to 210 months and sentenced Ross to 168 months’
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-1788 Page 2
imprisonment. This sentence is below the statutory maximum of incarceration for life.
Nevertheless Ross challenged his sentence, arguing that the district court’s application
of the sentencing guidelines was erroneous under United States v. Booker, 125 S. Ct.
738 (2005), and seeking a limited remand, see United States v. Paladino, 401 F.3d 471
(7th Cir. 2005). But in a letter to the court and in his reply brief Ross concedes that
our decision in United States v. Bownes, 405 F.3d 634 (7th Cir. 2005), which we issued
after Ross filed his opening brief, erased any doubt that an appeal waiver without an
“escape hatch” will be strictly enforced against an appellant who challenges his
sentence based on Booker. Because Ross’s plea agreement contains no such “escape
hatch” that would allow him to appeal if the law changed in his favor, we must enforce
the waiver. See United States v. Lockwood, No. 04-2511, 416 F.3d 604, 608 (7th Cir.
July 2005); United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005). Therefore,
the appeal is DISMISSED.

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