United States of America v. Mark Leon

* 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 2, 2005*
Decided September 6, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 04-3409
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARK LEON,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division.
No. 3:03-CR-00129(01)RM
Robert L. Miller, Jr.,
Chief Judge.
O R D E R
Mark Leon pleaded guilty to one count of possession of a firearm by a felon, 18
U.S.C. § 922(g)(1), and was sentenced to 30 months’ imprisonment (to be served
consecutively to an unexpired state sentence for battery) and three years’ supervised
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

-- 1 of 3 --

No. 04-3409 Page 2
release. His plea agreement includes a waiver of his right to appeal the conviction or
sentence, but Leon argues that the waiver is void under United States v. Hicks, 129
F.3d 376, 377 (7th Cir. 1997), which observes (like many other opinions) that an
appeal waiver is unenforceable if the sentence imposed exceeds the “statutory
maximum.” The statute defining the penalties for this crime gives 10 years as the
maximum term of imprisonment, 18 U.S.C. § 924(a)(2), but Leon contends that after
Blakely v. Washington, 542 U.S. 296 (2004), the phrase “statutory maximum” means
the upper end of the guideline range as calculated without reliance on any judicial
factfinding, and that under this interpretation his 30-month sentence exceeds the
“statutory maximum.”
Both parties briefed this appeal well before the April 26 release of United
States v. Bownes, 405 F.3d 634 (7th Cir. 2005), which makes clear that the extension
of Blakely to the guidelines in United States v. Booker, 125 S. Ct. 738 (2005),
changed nothing with respect to this court’s treatment of appeal waivers.
See Bownes, 405 F.3d at 636-37. A waiver that would have been enforced before
Booker will still be enforced now, even if it was negotiated without anticipating the
change in sentencing procedure wrought by Booker. See id. at 637. Already three
opinions and a number of unpublished orders have applied Bownes in rejecting
attempts to raise a Booker claim despite a waiver of appeal. See, e.g., United States
v. Lockwood, 416 F.3d 604, 608 (7th Cir. 2005); United States v. Roche, 415 F.3d 614,
617 (7th Cir. 2005) (“[T]here is nothing special about Booker that precludes
enforcement of a waiver.”); United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir.
2005) (“The plea agreement contained a waiver of Cieslowski’s right to appeal ‘any
sentence within the maximum provided in the statute of conviction.’ We strictly
enforce such waivers.”).
Lockwood expressly repudiates Leon’s “statutory maximum” argument and
controls this case. The defendant in Lockwood, just like Leon, argued that a Sixth
Amendment Booker error was a “‘fundamental error’ of the sort that may resurrect
his right to appeal.” Lockwood, 416 F.3d at 608. We expressly acknowledged that
being sentenced beyond the “statutory maximum” is one of several reasons why a
waiver might be ignored. Id. (citing Bownes, 405 F.3d at 637). But we also made
plain that none of the acknowledged exceptions to waivers was applicable in that
case, id., which can only mean that the phrase “statutory maximum” as used in cases
like Hicks has nothing to do with the upper end of a range under the sentencing
guidelines. A majority of circuits already have rejected similar arguments. See, e.g.,
United States v. Maldonado, 410 F.3d 1231, 1233 (10th Cir. 2005) (per curiam)
(rejecting claim identical to Leon’s because “‘statutory maximum’ for purposes of
[Tenth Circuit precedent articulating limits on the enforceability of appeal waivers]
does not have the same meaning as that given by the Court in Blakely and extended

-- 2 of 3 --

No. 04-3409 Page 3
to the sentencing guidelines by United States v. Booker”); United States v. Smith,
413 F.3d 778, 780-81 (8th Cir. 2005) (explaining that Blakely and Booker do not
alter meaning of “statutory maximum” as used in language of appeal waivers);
United States v. Bond, 414 F.3d 542, 546 n.8 (5th Cir. 2005) (same; citing cases);
United States v. Blick, 408 F.3d 162, 169 n.7 (4th Cir. 2005) (same; citing cases).
Accordingly, we DISMISS Leon’s appeal.

-- 3 of 3 --