United States v. Jose Restrepo ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-11329 August 3, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00332-CR-T-23-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE RESTREPO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 3, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
This case is before the Court for consideration in light of United States v.
Booker, 543 U.S. __, 125 S. Ct. 738, __ L. Ed. 2d __ (2005). We previously
affirmed Appellant Restrepo’s 210-month sentence for possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 960(b)(1)(B)(ii). See United States
v. Restrepo, Case No. 04-11329, 125 Fed. Appx. 976 (11th Cir. 2004) (Table)
(“Restrepo I”). The Supreme Court vacated our prior decision and remanded the
case to us for further consideration in light of Booker.
In his initial brief, Restrepo argued, inter alia, that the district court erred at
sentencing by adjusting his criminal history category after finding he was on
parole at the time he committed the instant offense. More specifically, Restepo
asserted that he was entitled to a jury finding on this fact, pursuant Blakely v.
Washington, 542 U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In a
footnote, we assumed, without deciding, that Restrepo’s Blakely challenge was
outside the scope of the appeal waiver in his plea agreement. See United States v.
Pease, 240 F.3d 938, 943 n.5 (11th Cir. 2001) (noting that defendant had waived
his right to appeal, and assuming, without deciding, that his Apprendi challenge
fell outside the scope of the waiver). Reviewing the claim for plain error, we held
that Restrepo could not establish that the alleged error was “obvious” or “clear
under current law.” We noted that, at the time of our opinion in this case, we had
held it was not “obvious from Blakely that the case would apply to render
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unconstitutional judicial fact finding leading to sentence enhancement under the
Federal Sentencing Guidelines.” See United States v. Duncan, 381 F.3d 1070,
1073 (11th Cir. 2004), vacated and superseded, 400 F.3d 1297 (11th Cir. 2005).
The Supreme Court subsequently extended its holding in Blakely to the
Federal Sentencing Guidelines in Booker, holding that there was no distinction of
constitutional significance between the Federal Sentencing Guidelines and the
Washington procedures at issue in Blakely. Booker, 125 S. Ct. at 749. “Any fact
(other than a prior conviction) which is necessary to support a sentence exceeding
the maximum authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury beyond a reasonable
doubt.” Id. at 756. In addition, because the mandatory nature of the Guidelines
implicated the Sixth Amendment right to a jury trial, the Supreme Court made the
Guidelines effectively advisory. Id. at 757.
In this case, Restrepo signed a written plea agreement, thereby waiving his
right to appeal his sentence, “directly or collaterally, on any ground . . . except for
an upward departure by the sentencing judge, a sentence above the statutory
maximum, or a sentence in violation of the law apart from the sentencing
guidelines.” In our first opinion, we noted the following:
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At the plea colloquy hearing, the magistrate judge carefully reviewed
the foregoing provisions with Restrepo and specifically detailed the
effect of the sentence-appeal waiver, stating, inter alia: “by this
language [an illegal sentence or an upward departure] are the only
two ways that you could initiate an appeal. The only other way that
you might be able to appeal would be if the prosecutor appeals and
then, this says that you would have a right to appeal, as well.” The
magistrate judge also told Restrepo: “what this provision does when
you show up at sentencing, if the Judge calculates your guidelines at a
particular level, and then sentences you within that range, you will
not be able to appeal that sentence, even if it is worse, harsher, longer
than you anticipated, as long as it’s a lawful sentence.” The
magistrate judge asked Restrepo if he understood the appeal waiver
and he responded that he did.
Restrepo I at 3. We previously concluded that Restrepo’s plea agreement,
including the appeal-waiver provision, was made knowingly and voluntarily.
Id. at 4-5. The appeal waiver included a waiver of the right to challenge his
sentence based on Booker error. See United States v. Rubbo, 396 F.3d 1330, 1335
(11th Cir. 2005) (“[T]he right to appeal a sentence based on Apprendi /Booker
grounds can be waived in a plea agreement. Broad waiver language covers those
grounds of appeal.”). Accordingly, we reinstate our previous opinion in this case
affirming Restrepo’s conviction.
AFFIRMED.
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