United States v. Garcia, Leonardo , 144 F. App'x 558 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 13, 2005*
Decided September 14, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-2473
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern
District of Indiana, Indianapolis
v. Division
LEONARDO GARCIA, No. 02-169-CR-03-M/F
Defendant-Appellant.
Larry J. McKinney,
Chief Judge.
ORDER
Leonardo Garcia pleaded guilty to methamphetamine charges, see 21 U.S.C.
§§ 846, 841(a)(1), and was sentenced to a total of 188 months’ imprisonment. His
plea agreement includes an appeal waiver made contingent on receiving a sentence
at “the minimum level of the applicable sentencing guidelines range,” and though
his cooperation with the government earned him a sentence below the 235- to 293-
month range that otherwise would have applied, see U.S.S.G. § 5K1.1, Garcia
*
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).
No. 04-2473 Page 2
appeals anyway. He argues that United States v. Booker, 125 S. Ct. 738 (2005),
requires resentencing. The government asks that we enforce the waiver and
dismiss the appeal.
Garcia filed his opening brief before our decision in United States v. Bownes,
405 F.3d 634 (7th Cir. 2005), which holds that appeal waivers like this one executed
before Booker are enforceable whether or not the parties anticipated that decision,
id. at 636-37; see United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005);
United States v. Peterson, 414 F.3d 825, 828-29 (7th Cir. 2005). Garcia seeks to
circumvent Bownes by arguing that a waiver cannot be enforced against a
defendant who is sentenced to a term of imprisonment above the “statutory
maximum,” see, e.g., United States v. Hicks, 129 F.3d 376, 377 (7th Cir. 1997),
which, Garcia says, is what happened to him. And while Title 21 expressly
authorizes up to 20 years’ imprisonment for dealing in the smallest amounts of
methamphetamine, see 21 U.S.C. § 841(b)(1)(C); Talbott v. Indiana, 226 F.3d 866,
869 (7th Cir. 2000), Garcia reasons that after Booker and Blakely v. Washington,
542 U.S. 296 (2004), the phrase “statutory maximum” means, not the longest term
allowed by the code section defining the offense, but instead the guideline range
calculated without judicial factfinding. We rejected this argument implicitly in
Bownes, 405 F.3d at 636-37, and did so explicitly in United States v. Lockwood, 416
F.3d 604, 608 (7th Cir. 2005).
DISMISSED.