United States v. Arrezola-Lopez

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
11-23-2005
USA v. Arrezola-Lopez
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3187
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 04-3187
__________
UNITED STATES OF AMERICA
v.
RAFAEL ARREZOLA-LOPEZ,
Appellant.
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Crim. No. 03-cr-00834-1)
District Judge: Honorable Cynthia M. Rufe
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 8, 2005
___________
Before: ROTH, FUENTES and GARTH, Circuit Judges
(Opinion Filed: November 23, 2005)
__________
OPINION
Garth, Circuit Judge:
On December 18, 2003, a grand jury indicted Rafael Arrezola-Lopez on one count
of illegal re-entry after deportation in violation of 8 U.S.C. §1326(a) and (b)(2). Mr.
Arreozola-Lopez pleaded guilty. In his written plea agreement, he waived his right to
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appeal, subject to a few exceptions. The relevant language in the plea agreement read:
In exchange for the undertaking made by the government in
entering this plea agreement, the defendant voluntarily and
expressly waived all rights to appeal or collaterally attack the
defendant’s conviction, sentence, or any other matter relating
to this prosecution . . .[N]otwithstanding the waiver provision
. . . the defendant may file a direct appeal but may raise only
claims that (1) the defendant’s sentence exceeds the statutory
maximum; or (2) the sentencing judge erroneously departed
upward from the otherwise applicable sentencing guideline
range.
The transcript of the plea colloquy makes clear that Mr. Arrezola-Lopez entered into this
waiver knowingly and voluntarily. See United States v. Khattak, 273 F.3d 557 (3d Cir.
2001). On July 26, 2004, Mr. Arrezola-Lopez was sentenced to 18 months’
imprisonment, a sentence that fell at the low end of the applicable guideline range (18-24
months), and well below the maximum allowed by the criminal provision he violated (20
years).
Mr. Arrezola-Lopez now asks us to vacate his sentence and remand for
resentencing under United States v. Booker, 125 S. Ct. 738 (2005). He argues that, in
violation of the rule of Booker, the District Court enhanced his sentence based on facts
that were neither charged in the indictment, admitted, nor proved to a jury beyond a
reasonable doubt.1 He also argues that remand is warranted because, in sentencing him,
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Mr. Arrezola-Lopez made this argument at the sentencing hearing, as well. The
District Court rejected it on its merits not only orally at the hearing, but also in a
memorandum opinion written in accordance with LAR 3.1 after Mr. Arrezola-Lopez filed
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the District Court treated the Sentencing Guidelines as mandatory, which was erroneous
under Booker.
We lack jurisdiction to consider these arguments because Mr. Arrezola-Lopez
waived his right to appeal except in limited circumstances, none of which are present
here. Mr. Arrezola-Lopez argues that circumstances falling within the waiver exception
are present here because in his plea agreement he reserved the right to challenge a
sentence that “exceeds the statutory maximum,” and he wishes to challenge a sentence
that he claims exceeds the “statutory maximum,” in the sense that the Booker court used
that term. As several courts have recognized, however, the phrase “statutory maximum,”
as used in Booker, reflects a different meaning than is reflected by that same phrase when
it is used in appellate waivers, at least those entered (as Mr. Arrezola-Lopez’s was) before
the Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004) and Booker.2
The Booker court used the phrase “statutory maximum” to mean “the maximum sentence
a judge may impose solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant.” Booker, 125 S. Ct. at 749. In appellate waivers such as the
his Notice of Appeal.
2
See United States v. Adams, No. 04-3127, 2005 WL 2562005, at *2-4 (3d Cir.
Oct. 13, 2005); United States v. Bond, 414 F.3d 542, 545-546 (5th Cir. 2005); United
States v. Luebbert, 411 F.3d 602, 603-604 (6th Cir. 2005); United States v. Blick, 408
F.3d 162, 169-170 & n.7 (4th Cir. 2005); United States v. Green, 405 F.3d 1180, 1191-
1194 (10th Cir. 2005); United States v. Rubbo, 396 F.3d 1330, 1334-1335 (11th Cir.),
cert. denied, 2005 WL 2493867 (2005); United States v. West, 392 F.3d 450, 459-461
(D.C. Cir. 2004) (Roberts, J.).
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one quoted above, on the other hand, the phrase “statutory maximum” means the
maximum punishment prescribed by Congress in the criminal statute violated. Mr.
Arrezola-Lopez’s sentence did not exceed the maximum punishment prescribed by
Congress in the criminal statute he violated, 8 U.S.C. §1326(b)(2), and so his challenge is
not the type excepted from the waiver in his plea agreement.
Mr. Arrezola-Lopez argues in the alternative that a finding that he waived his right
to appeal a sentence that he claims is unconstitutional under Booker would represent “a
miscarriage of justice.” Khattak, 273 F.3d at 562. Our opinion in United States v.
Lockett squarely rejects that position. 406 F.3d 207, 214 (3d Cir. 2005) (“where a
criminal defendant has voluntarily and knowingly entered into a plea agreement in which
he or she waives the right to appeal, the defendant is not entitled to resentencing in light
of Booker”).
For the foregoing reasons, we will dismiss Mr. Arrezola-Lopez’s appeal for lack of
jurisdiction.
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