United States v. McKinney

United States Court of Appeals
Fifth Circuit
F I L E D
April 15, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-41223
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
AUNDRE MCKINNEY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m G-03-CR-06
______________________________
Before DAVIS, SMITH, and
DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Aundre McKinney appeals his sentence in
light of United States v. Booker, 125 S. Ct.
738 (2005). Because McKinney waived his
right to appeal as part of his plea agreement,
we dismiss the appeal.
I.
McKinney pleaded guilty to federal
narcotics charges pursuant to a cooperation
agreement with the government. In
consideration for the plea, the government
agreed not to oppose a three-level reduction
from the applicable base offense level, under
the sentencing guidelines, for McKinney’s
prompt acceptance of responsibility. The
agreement plainly states that McKinney was
not limiting the court’s consideration of his

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“relevant conduct that relates specifically to
the controlled substance cocaine base for
which he [McKinney] may have been involved
in distributing during the life of the charged
offenses.”
The government conditionally agreed to
recommend a downward departure under
U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) if
McKinney cooperated in the investigation
and/or prosecution of others involved in the
offenses set forth in the indictment. The plea
agreement outlines McKinney’s understanding
of his sentencing exposure, noting that “the
sentence to be imposed is discretionary with
the sentencing judge and further [McKinney]
understands that if the sentencing judge
imposes a sentence up to the maximum es-
tablished by statute, [McKinney] cannot for
that reason alone, withdraw his guilty plea and
will remain bound by all the obligations of this
agreement.”
The agreement specifically notes the
maximum sentence available for the offense to
which McKinney pleaded guilty. Importantly,
the agreement contains a provision waiving
McKinney’s right to appeal unless the district
court upwardly departed from the applicable
guidelines range:
The defendant is aware that Title 18, Unit-
ed States Code, Section 3742 affords a
defendant the right to appeal the sentence
imposed. Knowing that, the defendant
waives his rights to appeal and collaterally
attack his conviction or the sentence
assessed by the Court, unless the Court
upwardly departs from the guidelines.
Pursuant to recommendations in the presen-
tence report (“PSR”), the district court
engaged in factfindingSSfor example, dete-
rmining the total cocaine base for which
McKinney was to be held responsibleSSthat in-
creased the applicable sentencing range under
the guidelines. The court adopted the PSR’s
recommendation to give McKinney a three-
level downward adjustment for acceptance of
responsibility, to which the government did
not object.
The resulting sentencing range was 135 to
168 months’ imprisonment. The government
made a motion for downward departure on the
ground that McKinney had rendered
substantial assistance to the government
pursuant to U.S.S.G. § 5K1.1. That motion
was granted, resulting in a sentence of 84
months.
In response to the PSR, McKinney objected
based on Blakely v. Washington, 124 S. Ct.
2531 (2004), which held a state sentencing
scheme unconstitutional under the Sixth
Amendment because it allowed a defendant to
receive a sentence higher than that based on
facts found by a judge and not admitted to by
the defendant or found by a jury. The district
court overruled McKinney’s objections
because of United States v. Pineiro, 377 F.3d
464 (5th Cir. 2004), vacated, 125 S. Ct. 1003
(2005), which held that Blakely does not apply
to the federal sentencing guidelines.
McKinney moves that the judgment of
sentence be vacated and remanded for
resentencing in light of Booker, 125 S. Ct. at
746 (opinion of Stevens, J.), which held that
Blakely extends to constitutional infirmities in
the federal sentencing guidelines insofar as it
makes mandatory upward adjustments from
the maximum authorized sentence supported
by the facts established by a plea of guilty or
jury verdict, based on facts found by a judge at

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sentencing.1 The government counters with a
motion to dismiss the appeal on the ground
that by his plea agreement McKinney waived
the right to appeal any sentence that does not
exceed the statutory range and does not up-
wardly depart from the range established by
the guidelines.
II.
A.
A defendant may waive his statutory right
to appeal if the waiver is knowing and
voluntary.2 We apply normal principles of
contract interpretation when construing plea
agreements.3
McKinney does not allege, and there is no
indication in the record, that his ratification of
the plea agreement was anything but knowing
and voluntary. As we stated in United States
v. Portillo, 18 F.3d 290, 293 (5th Cir. 1994):
[W]hen the record of the Rule 11 hearing
clearly indicates that a defendant has read
and understands his plea agreement, and
that he has raised no question regarding a
waiver-of-appeal provision, the defendant
will be held to the bargain to which he
agreed, regardless of whether the court
specifically admonished him concerning the
waiver of appeal.
Because McKinney indicated that he had read
and understood the plea agreement, which in-
cludes an explicit, unambiguous waiver of
appeal, the waiver was both knowing and
voluntary.
B.
We must determine whether the waiver ap-
plies to the circumstances at hand, based on
the plain language of the plea agreement.
According to the language of the agreement,
appeal is waived “unless the Court upwardly
departs from the guidelines.” The exception is
not met, because no upward departure was as-
sessedSSMcKinney was sentenced to 84
months, which is under the applicable
guidelines range as calculated by the district
court.
McKinney argues that an upward departure
was in fact assessed because Booker dictates
that a guidelines calculation may be made
based only on facts admitted by the defendant
or found by a jury beyond a reasonable doubt.
Assuming arguendo that McKinney’s calcula-
tions are correct, this definition of “guidelines
range” would allow him to avoid the appeal
waiver provision, because he was sentenced to
84 months, and he claims that the facts ad-
mitted in his guilty plea authorized a maximum
of only 57 months.
Unfortunately for McKinney, however,
Booker does not change the definition of a
“guidelines range,” as he contends. Booker
only strikes down the mandatory application
of guidelines ranges that are based on facts not
1 In his objection, McKinney claimed that the
district court was authorized to sentence him to
only 46-57 months, based on facts solely
contained in his guilty plea.
2 See United States v. Robinson, 187 F.3d
516, 517 (5th Cir. 1999); United States v. Portil-
lo, 18 F.3d 290, 292 (5th Cir. 1994) (“To be
valid, a defendant’s waiver of his right to appeal
must be informed and voluntary. A defendant
must know that he had a ‘right to appeal his
sentence and that he was giving up that right.’”)
(citing United States v. Melancon, 972 F.2d 566,
567-68 (5th Cir. 1992)).
3 United States v. Cantu, 185 F.3d 298, 304
(5th Cir. 1999) (“[W]e apply general principles
of contract law in order to interpret the terms of
the plea agreement.”)

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found by a jury beyond a reasonable doubt or
admitted by a defendant; Booker not only
allows a district court to find facts and
calculate guidelines ranges, but requires a
court to calculate and consider them, although
a court may now tailor sentences based on
other statutory concerns as well.4 Although
Booker influences the way the guidelines
ranges may be ultimately applied, it does not
contain any language changing the definition
of what an appropriate guidelines range is.
Because the district court was still allowed
to calculate McKinney’s advisory guideline
range based on facts to which he did not admit
and that were not found by a jury beyond a
reasonable doubt, the range from which we
determine whether McKinney was granted an
upward departure (for the purpose of the
appeal-waiver provision) was 135 to 168
months. McKinney was sentenced to 84
months, which is no departure.5
Finally, McKinney is bound to his
obligations under the plea agreement; the
government has fulfilled all its own promises
and has been faithful to the agreement. As
promised, it did not object to the PSR’s
recommended three-level downward
adjustment for acceptance of responsibility,
and it moved for a downward departure for
substantial assistance.
The motion to remand is DENIED; the
motion to dismiss the appeal is GRANTED;
and the appeal is DISMISSED.6
4 See Booker, 125 S. Ct. at 756-57 (opinion
of Breyer, J.) (holding that severing the unconsti-
tutional provisions of the guidelines renders them
“advisory” and “requires a sentencing court to
consider Guidelines ranges, . . . but it permits the
court to tailor the sentence in light of other
statutory concerns as well . . .”) (emphasis add-
ed); see also United States v. Mares, 2005 U.S.
App. LEXIS 3653, at *19 (5th Cir. Mar. 4,
2005) (“[The] duty to consider the Guidelines
will ordinarily require the sentencing judge to
determine the applicable Guidelines range even
though the judge is not required to sentence
within that range. The Guideline range should be
determined in the same manner as before
Booker/Fanfan. Relatedly, Booker contemplates
that, with the mandatory use of the Guidelines
excised, the Sixth Amendment will not impede a
sentencing judge from finding all facts relevant to
sentencing.”).
5 We thus agree with two other circuits that
have reached the same conclusion, i.e., that
Blakely and Booker do not alter the plain mean-
ing of appeal-waiver provisions in valid plea
agreements. See United States v. Rubbo, 396
F.3d 1330 (11th Cir. 2005); see also United
States v. West, 392 F.3d 450 (D.C. Cir. 2004).
Both cases rejected the argument that Blakely
and its progeny altered the meaning of “statutory
maximum” for the purposes of an appeal-waiver
provisionSSan argument not advanced by
McKinney. See Rubbo, 396 F.3d at 1334-35;
see also West, 392 F.3d at 460.
6 The government’s motion to extend the time
for filing its brief is DENIED as unnecessary.

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