United States of America v. Francis S. Matrious

* 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).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 29, 2005*
Decided November 29, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-4111
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCIS S. MATRIOUS,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District of Wisconsin
No. 04-CR-104-S-01
John C. Shabaz,
Judge.
O R D E R
Francis Matrious pleaded guilty to possession of a firearm by a felon, 18
U.S.C. § 922(g)(1), and was sentenced to 200 months’ imprisonment as an armed
career criminal, id. § 924(e). Despite stipulating in his plea agreement that the
sentencing guidelines applied in their entirety and consenting to judicial
factfinding by a preponderance of the evidence, Matrious now argues that he should
be resentenced on the ground that the district court believed it was bound by the
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-4111 Page 2
sentencing guidelines. See United States v. Booker, 125 S. Ct. 738 (2005); United
States v. Schlifer, 403 F.3d 849, 854 (7th Cir. 2005).
Matrious’s argument is frivolous for several reasons. First, he did not make
a Booker-type objection in the district court even though he was sentenced after the
release of Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker,
375 F.3d 508 (7th Cir. 2004), judgment aff’d and remanded, 125 S. Ct. 738 (2005).
At best, then, Matrious would be entitled to a limited remand under the plain-error
analysis set forth in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), not a
full resentencing. But even a limited remand is unnecessary because we already
know that Matrious was not prejudiced by the mandatory application of the
guidelines. As the judgment of conviction reflects, the district court would have
imposed an identical sentence were it not bound by the guidelines.
More importantly, Matrious did not just forfeit his Booker argument but
instead waived altogether the right to challenge the use of the guidelines. He
agreed in his plea contract that the guidelines were “applicable in their entirety.”
Part of the guidelines as they stood when he was sentenced in November 2004 was
the statute requiring their mandatory application. See 18 U.S.C. § 3553(b)(1). And
having been duly warned that the district court read Blakely to preclude it from
making “determinations increasing the sentence . . . by a preponderance of the
evidence,” Matrious also consented to judicial factfinding by a preponderance of the
evidence. Matrious is bound by the concessions he made in his plea agreement and
has waived any right to benefit from subsequent changes in the law. See United
State v. Berheide, 421 F.3d 538, 542 (7th Cir. 2005); United States v. Bownes, 405
F.3d 634, 636 (7th Cir. 2005).
AFFIRMED.

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