United States v. Kennedy

United States Court of Appeals
Fifth Circuit
F I L E D
June 21, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-11334
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GARY GENE KENNEDY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 7:03-CR-3-ALL
______________________________

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before SMITH, DEMOSS, and STEWART,
Circuit Judges.
PER CURIAM:*
This court dismissed Gary Kennedy’s ap-
peal of his sentence based on an appeal waiver
provision in his plea agreement. United States
v. Kennedy, 99 Fed. Appx. 557 (5th Cir. 2004)
(per curiam). We granted Kennedy’s attor-
ney’s motion to withdraw pursuant to Anders
v. California, 386 U.S. 738, 744 (1967). The
Supreme Court vacated and remanded for fur-
ther consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). Kennedy v.
United States, 125 S. Ct. 1016 (2005). We re-
quested and received supplemental letter briefs
addressing the impact of Booker.
In his supplemental letter brief on remand,
Kennedy SS represented again by counsel SS
correctly perceives that the question at hand
regarding the appeal waiver is the following:
“Does a sentence that exceeds an unenhanced
guideline range constitute a sentence that ex-
ceeds the statutory maximum sentence, which
is what occurred in this case, or does this refer
only to increases over the statutory maximum
sentence located within the United States
Code?” Counsel wrote this letter on March 7,
2005, at which time he correctly observed the
following:
[The Fifth Circuit] has not addressed this
issue in the context of [Booker]. [It] has,
however, addressed this issue in the similar
context of appeal waivers and Blakely v.
Washington, 124 S. Ct. 2531 (2004). Un-
fortunately, in unpublished opinions, this
Court has taken contradictory positions on
this issue. Compare United States v. Cor-
tez, [120 Fed. Appx. 535 (5th Cir. Jan. 10,
2005) (per curiam)] to United States v.
Berger, [119 Fed. Appx. 658 (5th Cir. Jan.
10, 2005) (per curiam), cert. denied, 125 S.
Ct. 2285 (2005)].
Kennedy’s counsel urges that we “adopt the
holding in Cortez, where this Court, ‘in an
abundance of caution and because appellate-
waiver provisions are to be construed against
the Government,’ considered the defendant’s
argument related to Blakely.”
Unfortunately for Kennedy, however, the
Cortez panel granted rehearing and reversed
its position. See United States v. Cortez, 2005
U.S. App. LEXIS 11418 (5th Cir. June 16,
2005) (per curiam) (on rehearing). In Cortez,
the defendant “argue[d] that he did not waive
the right to appeal a sentence above the statu-
tory maximum as that term was defined in
Blakely.” Id. at *2. Citing United States v.
McKinney, 406 F.3d 744, 746-47 (5th Cir.
Apr. 15, 2005), the Cortez panel reasoned that
“[t]he language in the appellate waiver must be
afforded its plain meaning in accord with the
intent of the parties at the time the plea agree-
ment was executed.” Cortez, 2005 U.S. App.
LEXIS 11418, at *2. The court concluded
that there was “no indication that the parties
intended that the exception in the appellate
waiver for ‘a sentence exceeding the statutory
maximum punishment’ would have a meaning
other than its ordinary and natural meaning.”
Id. (citations omitted). Thus, citing United
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined 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.

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States v. Rubbo, 396 F.3d 1330, 1334-35
(11th Cir. 2005), the Cortez panel reasoned
that in this context, the term “statutory maxi-
mum” in an appeal waiver means “the upper
limit of punishment that Congress has legisla-
tively specified for violations of a statute.”
Id.1
In its letter brief of March 7, 2005, the gov-
ernment makes no reference to the waiver of
appeal. We assume, from this, that the gov-
ernment does not insist that the appeal waiver
be enforced in this case. Only because of that
circumstance, and because appeal waivers are
not jurisdictional, we will not hold Kennedy to
his waiver, which otherwise, under Cortez,
would require that the appeal be dismissed.
We do note, however, that Kennedy raised
alleged Booker error for the first time in his
petition for writ of certiorari. We have recent-
ly held that, in the context of alleged Booker
error, and “absent extraordinary circumstanc-
es, [we will not] consider an argument raised
for the first time in a petition for [writ of] cer-
tiorari.” United States v. Taylor, 2005 U.S.
App. LEXIS 8701, at *3 (5th Cir. May 17,
2005) (per curiam).
There are no extraordinary circumstances
here. If we were to consider Kennedy’s is-
sues, we would review for plain error, because
Kennedy concedes that no Sixth Amendment
objection was raised in the district court. See
United States v. Mares, 402 F.3d 511, 520
(5th Cir. 2005), petition for cert. filed (Mar.
31, 2005) (No. 04-9517). “An appellate court
may not correct an error the defendant failed
to raise in the district court unless there is
‘(1) error, (2) that is plain, and (3) that affects
substantial rights.’” Id. (quoting United States
v. Cotton, 535 U.S. 625, 631 (2002)).
In its supplemental brief, the government
concedes plain error “in light of Booker.”2
Based solely on facts Kennedy admitted, how-
ever, he could have received the same sentence
on remand. It follows that he cannot show
that he would receive a lesser sentence on
remand, so none of his substantial rights is
affected.
The judgments of sentence is AFFIRMED.
1 Other circuits similarly have concluded that
Blakely and Booker do not alter the plain meaning
of “statutory maximum” as defined in waiver of
appeal provisions in plea agreements. See United
States v. West, 392 F.3d 450 (D.C. Cir. 2004);
United States v. Blick, 2005 U.S. App. LEXIS
9742, at *19 (4th Cir. May 27, 2005); United
States v. Luebbert, 2005 U.S. App. LEXIS 9972,
at *3 (6th Cir. June 1, 2005); United States v.
Green, 405 F.3d 1180, 1191-94 (10th Cir. 2005).
2 Because Kennedy admitted to facts sufficient
to sustain his sentence under Booker, his only re-
maining claim is that he nonetheless is entitled to
be sentenced under an advisory, instead of manda-
tory, guideline regime. “Technically, this is a
“Fanfan error, not a Booker error.” United States
v. Martinez-Lugo, 2005 U.S. App. LEXIS 10432,
at *5 (5th Cir. June 7, 2005) (per curiam) (refer-
ring to Ducan Fanfan, the second defendant in the
consolidated opinion in Booker). See United States
v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005) (per
curiam) (discussing the difference between Booker
and Fanfan error).

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