                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT               September 27, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                              No. 03-11196
                          Conference Calendar


UNITED STATES OF AMERICA

                       Plaintiff - Appellee

     v.

ROY L BROWN

                       Defendant - Appellant

                          --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                      USDC No. 3:03-CR-164-ALL-N
                          --------------------

                       ON PETITION FOR REHEARING


Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Roy L. Brown petitions for panel rehearing in light of the

holding in United States v. Booker, 125 S. Ct. 738 (2005), that

Blakely v. Washington, 124 S. Ct. 2531 (2004), is applicable to

the Federal Sentencing Guidelines.      We now GRANT the petition for

rehearing, withdraw our earlier opinion, and substitute the

following.     See FED. R. APP. P. 40(a)(4)(C).




     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                           No. 03-11196
                                -2-

     Brown appeals following his guilty plea to securities fraud,

in violation of 15 U.S.C. §§ 77q(a) and 77x, and bank fraud, in

violation of 18 U.S.C. § 1344.   Brown pleaded guilty pursuant to

a written plea agreement that contained a waiver of the right to

appeal.   We may examine Brown’s plea agreement sua sponte to

determine whether we may hear his claims.   United States v.

Martinez, 263 F.3d 436, 438 (5th Cir. 2001).   We conclude that

the appeal is barred by the plain language of Brown’s knowing and

voluntary appeal waiver in the plea agreement.   See United States

v. Bond, __ F.3d __, No. 04-41125, 2005 WL 1459641, at *3-4 (5th

Cir. June 21, 2005); United States v. McKinney, 406 F.3d 744,

746-47 (5th Cir. 2005).

     PETITION FOR REHEARING GRANTED; APPEAL DISMISSED.
