United States of America v. Cleveland Morris, a/k/a SHYEM KHALIL MORRIS Cleveland Morris

Judge Chertoff resigned prior to the vacatur of this panel’s earlier decision. On*
remand, this case was decided by a quorum of the original panel. See 28 U.S.C. § 46(d).
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3050
UNITED STATES OF AMERICA
v.
CLEVELAND MORRIS,
a/k/a SHYEM KHALIL MORRIS
Cleveland Morris,
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
District Court No. 03-cr-00711
District Court Judge: The Honorable R. Barclay Surrick
Submitted Under Third Circuit LAR 34.1(a)
July 13, 2005
Before: ALITO, FUENTES, and CHERTOFF, Circuit Judges*
(Opinion Filed: September 23, 2005)

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OPINION OF THE COURT
PER CURIAM:
This case returns to us on remand from the Supreme Court of the United States,
which vacated this Court’s decision dismissing Cleveland Morris’s appeal from his
sentence in a criminal case. See Morris v. United States, 125 S. Ct. 1959 (2005). The
Supreme Court instructed us to reconsider our decision in light of United States v.
Booker, 125 S. Ct. 738 (2005). Having carefully reconsidered it, we conclude that our
earlier order was correct, and we again dismiss Morris’s appeal for lack of jurisdiction.
Our decision is constrained by United States v. Lockett, 406 F.3d 207 (3d Cir.
2005). The Court there held that “where a criminal defendant has voluntarily and
knowingly entered into a plea agreement in which he or she waives the right to appeal, the
defendant is not entitled to resentencing in light of Booker.” Id. at 214. The Court
explained that the knowingness and voluntariness of a plea are not vitiated just because
the defendant could not foresee that the Supreme Court would later grant him a right to
challenge the mandatory application of the Guidelines to his case. See id. at 213-14.
Since the terms of Morris’s guilty plea mirror those in Lockett, see id. at 212-13, Morris
has similarly waived his right to challenge his sentence.
Morris argues that his appeal may proceed under an exception set forth in the plea
agreement for sentences that “exceed the statutory maximum,” but the sentence he

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received did not trigger that exception. At his plea colloquy, Morris clearly admitted to
having been “a convicted felon in possession of a firearm.” Tr. at 8; see also id. at 17-18.
This crime, a violation of 18 U.S.C. § 922(g)(1), carries a maximum sentence of ten years
of imprisonment. See id. § 924(a)(2). Morris acknowledged at the plea colloquy that this
was the maximum sentence he faced. Tr. at 9. The sentence he actually received, 90
months, thus fell well shy of the maximum he could have received based on the facts he
admitted at the colloquy. Because his sentence does not come within one of the
exceptions set forth in the plea agreement, Morris’s appeal is foreclosed and must be
dismissed.

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