United States v. Speer

*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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
September 19, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-11103
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAY DALE SPEER,
Defendant-Appellant.
Appeal from the United States District Court for
the Northern District of Texas
(USDC No. 4:04-CR-50-ALL-Y)
_________________________________________________________
Before REAVLEY, HIGGINBOTHAM and GARZA, Circuit Judges.
PER CURIAM:*
Ray Dale Speer appeals his conviction and sentence following his conditional
guilty plea to the offense of being a felon in possession of a firearm on the grounds that:
(1) the sentencing enhancements violate the Sixth Amendment rule announced in United
States v. Booker, 125 S. Ct. 738 (2005); and (2) the district court erred in denying his

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motion to suppress incriminating statements because he made the statements when he was
in custody and prior to being advised of his rights as required by Miranda v. Arizona, 384
U.S. 436 (1966). We affirm for the following reasons:
1. Speer does not argue that the waiver was unknowing or involuntary. He is held to
his agreement. See United States v. Portillo, 18 F.3d 290, 292-93 (5th Cir 1994).
2. Because the term “statutory maximum” in an appeal waiver refers to the maximum
allowed by statute, not the guideline maximum authorized by a guilty plea or
verdict, and because Spear was sentenced below the maximum allowed by statute,
Speer waived his right to appeal his sentence. United States v. Bond, 414 F.3d
542, 545-46 (5th Cir. 2005). There is no indication in the record that the parties
intended the term “statutory maximum” to be accorded the non-natural definition it
assumed in Blakely v. Washington, 542 U.S. 296 (2004), and Booker. Id.
3. In the appeal waiver, Speer specifically reserved the right to challenge the district
court’s ruling on his motion to suppress. Speer’s statements were properly
admitted because they were voluntary and not the result of a custodial
“interrogation.” Miranda, 384 U.S. at 478; United States v. Gonzales, 121 F.3d
928, 940 & n.7 (5th Cir. 1997). Accordingly, the district court did not err in
denying the motion to suppress. United States v. Castro, 166 F.3d 728, 731 (5th
Cir. 1999) (en banc).
Affirmed.

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