United States of America v. David Duran

* This appeal originally was consolidated for purposes of briefing and
disposition with United States v. Frank Duran, No. 03-2506, but we later severed
the two cases. After an examination of the briefs and the record, we have concluded
that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and
the record. See Fed. R. App. P. 34(a)(2).
1 Circuit Judge Kenneth F. Ripple was originally a member of the panel
assigned to this case. Due to a change in circumstances, Judge Ripple has decided
to recuse himself from further proceedings in this matter.
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 13, 2005*
Decided July 28, 2005
Before
Hon. JOEL M. FLAUM, Chief Judge 1
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 03-2968
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID DURAN,
Defendant-Appellant.
Appeal from the United States
District Court for the Northern
District of Illinois, Eastern Division
No. 01 CR 757
Ronald A. Guzman,
Judge.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 03-2968 Page 2
O R D E R
David Duran, his brother Frank, and several others were part of a drug
conspiracy responsible for distributing cocaine and marijuana in Chicago. Duran
pleaded guilty pursuant to a written plea agreement to two of the 16 counts charged
against him—conspiring to possess with the intent to distribute and to distribute
controlled substances, 21 U.S.C. §§ 846, 841(a)(1), and possessing a firearm in
furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)—and agreed to
testify against his brother. As part of the plea agreement Duran waived his right to
appeal his sentence in exchange for concessions by the government. He received a
downward departure under U.S.S.G. § 5K1.1 for his cooperation, and was sentenced
to a total of 336 months’ imprisonment for both counts, the precise term
contemplated by the plea agreement.
Despite his waiver Duran appeals, arguing that the district court erred by
sentencing him under the formerly mandatory guidelines regime, see United States
v. Booker, 125 S. Ct. 738 (2005), and contending that a limited remand is warranted
under United States v. Paladino, 401 F.3d 471 (7th Cir. 2005). We cannot reach
that issue, however, because his appeal waiver is enforceable. Nothing in Duran’s
plea agreement provides an “escape hatch” enabling him to appeal if the law
changed to his benefit, and, as we held after Duran filed his brief, Booker does not
invalidate the parties’ bargain where there is no such express provision. See
United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005); see also United States
v. Roche, No. 04-1475, 2005 WL 1618816, at *2 (7th Cir. July 11, 2005); United
States v. Cieslowski, 410 F.3d 353, 362 (7th Cir. 2005). Our opinion in United
States v. Loutos, 383 F.3d 615 (7th Cir. 2004), which does not discuss the effect of
the appeal waiver in that case, cannot be read as inconsistent with Bownes.
Finally, we note that Booker, in any event, does not undermine bargained-for,
lawful sentences like Duran’s that were imposed by the district court pursuant to
Federal Rule of Criminal Procedure 11(c)(1)(C). See Cieslowski, 410 F.3d at 363-64.
Duran’s appeal is DISMISSED.

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