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United States Court of Appeals
Fifth Circuit
F I L E D
In the
April 15, 2005
United States Court of Appeals
Charles R. Fulbruge III
for the Fifth Circuit
Clerk
_______________
m 04-41223
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
AUNDRE MCKINNEY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m G-03-CR-06
______________________________
Before DAVIS, SMITH, and
I.
DENNIS, Circuit Judges.
McKinney pleaded guilty to federal
narcotics charges pursuant to a cooperation
JERRY E. SMITH, Circuit Judge:
agreement with the government. In
consideration for the plea, the government
Aundre McKinney appeals his sentence in
agreed not to oppose a three-level reduction
light of United States v. Booker, 125 S. Ct.
from the applicable base offense level, under
738 (2005). Because McKinney waived his
the sentencing guidelines, for McKinney's
right to appeal as part of his plea agreement,
prompt acceptance of responsibility. The
we dismiss the appeal.
agreement plainly states that McKinney was
not limiting the court's consideration of his

"relevant conduct that relates specifically to
McKinney was to be held responsibleSSthat in-
the controlled substance cocaine base for
creased the applicable sentencing range under
which he [McKinney] may have been involved
the guidelines. The court adopted the PSR's
in distributing during the life of the charged
recommendation to give McKinney a three-
offenses."
level downward adjustment for acceptance of
responsibility, to which the government did
The government conditionally agreed to
not object.
recommend a downward departure under
U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) if
The resulting sentencing range was 135 to
McKinney cooperated in the investigation
168 months' imprisonment. The government
and/or prosecution of others involved in the
made a motion for downward departure on the
offenses set forth in the indictment. The plea
ground that McKinney had rendered
agreement outlines McKinney's understanding
substantial assistance to the government
of his sentencing exposure, noting that "the
pursuant to U.S.S.G. § 5K1.1. That motion
sentence to be imposed is discretionary with
was granted, resulting in a sentence of 84
the sentencing judge and further [McKinney]
months.
understands that if the sentencing judge
imposes a sentence up to the maximum es-
In response to the PSR, McKinney objected
tablished by statute, [McKinney] cannot for
based on Blakely v. Washington, 124 S. Ct.
that reason alone, withdraw his guilty plea and
2531 (2004), which held a state sentencing
will remain bound by all the obligations of this
scheme unconstitutional under the Sixth
agreement."
Amendment because it allowed a defendant to
receive a sentence higher than that based on
The agreement specifically notes the
facts found by a judge and not admitted to by
maximum sentence available for the offense to
the defendant or found by a jury. The district
which McKinney pleaded guilty. Importantly,
court overruled McKinney's objections
the agreement contains a provision waiving
because of United States v. Pineiro, 377 F.3d
McKinney's right to appeal unless the district
464 (5th Cir. 2004), vacated, 125 S. Ct. 1003
court upwardly departed from the applicable
(2005), which held that Blakely does not apply
guidelines range:
to the federal sentencing guidelines.
The defendant is aware that Title 18, Unit-
McKinney moves that the judgment of
ed States Code, Section 3742 affords a
sentence be vacated and remanded for
defendant the right to appeal the sentence
resentencing in light of Booker, 125 S. Ct. at
imposed. Knowing that, the defendant
746 (opinion of Stevens, J.), which held that
waives his rights to appeal and collaterally
Blakely extends to constitutional infirmities in
attack his conviction or the sentence
the federal sentencing guidelines insofar as it
assessed by the Court, unless the Court
makes mandatory upward adjustments from
upwardly departs from the guidelines.
the maximum authorized sentence supported
by the facts established by a plea of guilty or
Pursuant to recommendations in the presen-
jury verdict, based on facts found by a judge at
tence report ("PSR"), the district court
engaged in factfindingSSfor example, dete-
rmining the total cocaine base for which
2

sentencing.1 The government counters with a
that he has raised no question regarding a
motion to dismiss the appeal on the ground
waiver-of-appeal provision, the defendant
that by his plea agreement McKinney waived
will be held to the bargain to which he
the right to appeal any sentence that does not
agreed, regardless of whether the court
exceed the statutory range and does not up-
specifically admonished him concerning the
wardly depart from the range established by
waiver of appeal.
the guidelines.
Because McKinney indicated that he had read
II.
and understood the plea agreement, which in-
A.
cludes an explicit, unambiguous waiver of
A defendant may waive his statutory right
appeal, the waiver was both knowing and
to appeal if the waiver is knowing and
voluntary.
voluntary.2 We apply normal principles of
contract interpretation when construing plea
B.
agreements.3
We must determine whether the waiver ap-
plies to the circumstances at hand, based on
McKinney does not allege, and there is no
the plain language of the plea agreement.
indication in the record, that his ratification of
According to the language of the agreement,
the plea agreement was anything but knowing
appeal is waived "unless the Court upwardly
and voluntary. As we stated in United States
departs from the guidelines." The exception is
v. Portillo, 18 F.3d 290, 293 (5th Cir. 1994):
not met, because no upward departure was as-
sessedSSMcKinney was sentenced to 84
[W]hen the record of the Rule 11 hearing
months, which is under the applicable
clearly indicates that a defendant has read
guidelines range as calculated by the district
and understands his plea agreement, and
court.
McKinney argues that an upward departure
1 In his objection, McKinney claimed that the
was in fact assessed because Booker dictates
district court was authorized to sentence him to
that a guidelines calculation may be made
only 46-57 months, based on facts solely
based only on facts admitted by the defendant
contained in his guilty plea.
or found by a jury beyond a reasonable doubt.
2
Assuming arguendo that McKinney's calcula-
See United States v. Robinson, 187 F.3d
tions are correct, this definition of "guidelines
516, 517 (5th Cir. 1999); United States v. Portil-
lo, 18 F.3d 290, 292 (5th Cir. 1994) ("To be
range" would allow him to avoid the appeal
valid, a defendant's waiver of his right to appeal
waiver provision, because he was sentenced to
must be informed and voluntary. A defendant
84 months, and he claims that the facts ad-
must know that he had a `right to appeal his
mitted in his guilty plea authorized a maximum
sentence and that he was giving up that right.'")
of only 57 months.
(citing United States v. Melancon, 972 F.2d 566,
567-68 (5th Cir. 1992)).
Unfortunately for McKinney, however,
Booker does not change the definition of a
3 United States v. Cantu, 185 F.3d 298, 304
"guidelines range," as he contends. Booker
(5th Cir. 1999) ("[W]e apply general principles
only strikes down the mandatory application
of contract law in order to interpret the terms of
of guidelines ranges that are based on facts not
the plea agreement.")
3

found by a jury beyond a reasonable doubt or
months, which is no departure.5
admitted by a defendant; Booker not only
allows a district court to find facts and
Finally, McKinney is bound to his
calculate guidelines ranges, but requires a
obligations under the plea agreement; the
court to calculate and consider them, although
government has fulfilled all its own promises
a court may now tailor sentences based on
and has been faithful to the agreement. As
other statutory concerns as well.4 Although
promised, it did not object to the PSR's
Booker influences the way the guidelines
recommended three-level downward
ranges may be ultimately applied, it does not
adjustment for acceptance of responsibility,
contain any language changing the definition
and it moved for a downward departure for
of what an appropriate guidelines range is.
substantial assistance.
Because the district court was still allowed
The motion to remand is DENIED; the
to calculate McKinney's advisory guideline
motion to dismiss the appeal is GRANTED;
range based on facts to which he did not admit
and the appeal is DISMISSED.6
and that were not found by a jury beyond a
reasonable doubt, the range from which we
determine whether McKinney was granted an
upward departure (for the purpose of the
appeal-waiver provision) was 135 to 168
months. McKinney was sentenced to 84
4 See Booker, 125 S. Ct. at 756-57 (opinion
of Breyer, J.) (holding that severing the unconsti-
tutional provisions of the guidelines renders them
"advisory" and "requires a sentencing court to
consider Guidelines ranges, . . . but it permits the
5 We thus agree with two other circuits that
court to tailor the sentence in light of other
have reached the same conclusion, i.e., that
statutory concerns as well . . .") (emphasis add-
Blakely and Booker do not alter the plain mean-
ed); see also United States v. Mares, 2005 U.S.
ing of appeal-waiver provisions in valid plea
App. LEXIS 3653, at *19 (5th Cir. Mar. 4,
agreements. See United States v. Rubbo, 396
2005) ("[The] duty to consider the Guidelines
F.3d 1330 (11th Cir. 2005); see also United
will ordinarily require the sentencing judge to
States v. West, 392 F.3d 450 (D.C. Cir. 2004).
determine the applicable Guidelines range even
Both cases rejected the argument that Blakely
though the judge is not required to sentence
and its progeny altered the meaning of "statutory
within that range. The Guideline range should be
maximum" for the purposes of an appeal-waiver
determined in the same manner as before
provisionSSan argument not advanced by
Booker/Fanfan. Relatedly, Booker contemplates
McKinney. See Rubbo, 396 F.3d at 1334-35;
that, with the mandatory use of the Guidelines
see also West, 392 F.3d at 460.
excised, the Sixth Amendment will not impede a
sentencing judge from finding all facts relevant to
6 The government's motion to extend the time
sentencing.").
for filing its brief is DENIED as unnecessary.
4