United States of America v. Kenneth B. Macqueen

* 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 August 18, 2005*
Decided August 18, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 04-1346
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH B. MACQUEEN,
Defendant-Appellant.
Appeal from the United States
District Court for the Northern
District of Illinois, Eastern Division
No. 03 CR 195 1
Ronald A. Guzmán,
Judge.
O R D E R
Kenneth MacQueen pleaded guilty to one count of mail fraud, 18 U.S.C.
§ 1341. The plea agreement stipulated that MacQueen defrauded investors of at
least $6,600,000 through a Ponzi scheme, although the government eventually
calculated a smaller loss amount. The agreement expressly waived MacQueen’s
right to appeal his sentence under 18 U.S.C. § 3742 or any other grounds. The only
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-1346 Page 2
exception was for a claim of involuntariness or ineffective assistance of counsel
directly related to the plea agreement itself. The district court sentenced
MacQueen to 135 months’ incarceration and ordered that he pay $5,173,323 in
restitution to the victims of his fraud.
On appeal MacQueen argues that he is entitled to a limited remand under
United States v. Booker, 125 S.Ct. 738 (2005), and United States v. Paladino, 401
F.3d 471 (7th Cir. 2005), despite the waiver clause in his plea agreement, because
the district court imposed his sentence under the mistaken belief that the
sentencing guidelines were mandatory. MacQueen cites United States v. Loutos,
383 F.3d 615 (7th Cir. 2004), for the proposition that a Sixth Amendment violation
under Booker is a non-waivable claim. However, this court has held since Loutos
that appeal waivers such as MacQueen’s are enforceable, even when the law
changes after the plea agreement is signed. See United States v. Bownes, 405 F.3d
634, 636-37 (7th Cir. 2005); see also United States v. Lockwood, 2005 WL 1743745,
at *4 (7th Cir. July 26, 2005). Loutos, which does not discuss the effect of the
appeal waiver on a Booker challenge, cannot be read as inconsistent with Bownes.
MacQueen’s appeal is DISMISSED.

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