United States v. Panozzo, Frank ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 1, 2006
Decided April 13, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-1051
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Western Division.
v.
No. 03 CR 50067-1
FRANK M. PANOZZO,
Defendant-Appellant. Philip G. Reinhard,
Judge.
ORDER
Frank Panozzo pleaded guilty to three counts of stealing a firearm from a
licensed dealer, 18 U.S.C. § 924(m). As part of his plea agreement Panozzo agreed
to have his sentence determined using the Sentencing Guidelines as mandatory.
The district court sentenced Panozzo to concurrent terms of 56 months’
imprisonment on all three counts, the middle of the mandatory Guideline range.
Despite his plea agreement Panozzo attacks his sentence under United States v.
Booker, 543 U.S. 220 (2005). We affirm.
In 2004, a grand jury indicted Panozzo on three counts of stealing a firearm
from a licensed dealer and three counts of being a felon in possession of a firearm.
Panozzo pleaded guilty to the three theft charges pursuant to a written plea
No. 05-1051 Page 2
agreement. At the time Panozzo entered into his plea agreement the Supreme
Court had granted certiorari for review of this court’s decision in United States v.
Booker, 375 F.3d 508 (7th Cir. 2004). Panozzo’s attorney explained to him the
potential ramifications of Blakely v. Washington, 542 U.S. 296 (2004), and in the
plea agreement Panozzo acknowledged “that he may be entitled to have any
disputed sentencing fact which could increase his sentence determined at a jury
trial under a proof beyond a reasonable doubt standard.” Nonetheless Panozzo
agreed “[t]o have his sentence determined under the Sentencing Guidelines,” and to
have the district court determine his sentencing facts. At the change of plea
hearing, the district court confirmed that Panozzo understood that he agreed to be
sentenced under the Guidelines “as mandatory” and that the court would determine
the sentencing factors. On appeal Panozzo does not challenge the district court’s
calculation of the Guideline range.
Panozzo argues in his opening brief that the district court impermissibly
sentenced him using the mandatory Guidelines and asks for a full remand for
resentencing, citing the Supreme Court’s decision in Booker. After his opening brief
was filed, we decided United States v. Berheide, 421 F.3d 538 (7th Cir. 2005),
holding that a defendant is bound by the concessions made in his plea agreement
and has waived any right to benefit from subsequent changes in the law. In his
reply brief, Panozzo recognizes that Berheide appears to control his case but argues
that Berheide was wrongly decided. In the alternative he argues that his case can
be distinguished from Berheide because Panozzo retained the right to appeal an
incorrect application of the mandatory Guidelines.
Panozzo contends that no one could have anticipated that the Guidelines
would become advisory and therefore, contrary to the holding in Berheide, it was
not possible for individuals to knowingly waive the right to be sentenced under an
advisory Guidelines system. The risk of the unknowable is inherent in all contracts
and a plea agreement is no different. See United States v. Bownes, 405 F.3d 634,
636 (7th Cir. 2005). Panozzo agreed in his plea agreement that the Guidelines
would determine his sentence based on the district court’s determination of the
sentencing factors. Panozzo is bound by this promise and has waived the right to
any benefit from subsequent changes in the law whether or not they could be
foreseen. See Berheide, 421 F.3d at 542; Bownes, 405 F.3d at 636-37.
Panozzo attempts to distinguish between a constitutional Booker error and a
statutory error in applying the Guidelines as mandatory. He argues that, even if he
has waived his constitutional Booker claim, he has not waived his statutory right to
be sentenced under an advisory Guideline system. But at the time Panozzo agreed
to be sentenced under the Guidelines they were applied as mandatory, see 18 U.S.C.
§ 3553(b)(1), and the plain language of his plea agreement makes no distinction
between constitutional and statutory errors. He agreed in the plea agreement that
No. 05-1051 Page 3
he would “have his sentence determined under the Sentencing Guidelines” and he
confirmed at the change of plea hearing that he understood the district court would
use “the guidelines as mandatory by agreement of the lawyers.” His situation is not
different than Berheide’s or Bownes’ simply because he preserved the right to
appeal an incorrect application of the Guidelines. He is not asking us to correct an
error in calculating his Guideline range; he is asking us to allow him the benefit of
Booker. But Panozzo explicitly waived his right to that benefit.
Accordingly, we AFFIRM Panozzo’s sentence.