                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                            F I L E D
                    In the                                   June 21, 2005
United States Court of Appeals                           Charles R. Fulbruge III
          for the Fifth Circuit                                  Clerk
              _______________

                m 03-11334
              _______________




       UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

                   VERSUS

          GARY GENE KENNEDY,

                                   Defendant-Appellant.


      _________________________

  Appeal from the United States District Court
      for the Northern District of Texas
              m 7:03-CR-3-ALL
    ______________________________
          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before SMITH, DEMOSS, and STEWART,                            however, addressed this issue in the similar
  Circuit Judges.                                             context of appeal waivers and Blakely v.
                                                              Washington, 124 S. Ct. 2531 (2004). Un-
PER CURIAM:*                                                  fortunately, in unpublished opinions, this
                                                              Court has taken contradictory positions on
   This court dismissed Gary Kennedy’s ap-                    this issue. Compare United States v. Cor-
peal of his sentence based on an appeal waiver                tez, [120 Fed. Appx. 535 (5th Cir. Jan. 10,
provision in his plea agreement. United States                2005) (per curiam)] to United States v.
v. Kennedy, 99 Fed. Appx. 557 (5th Cir. 2004)                 Berger, [119 Fed. Appx. 658 (5th Cir. Jan.
(per curiam). We granted Kennedy’s attor-                     10, 2005) (per curiam), cert. denied, 125 S.
ney’s motion to withdraw pursuant to Anders                   Ct. 2285 (2005)].
v. California, 386 U.S. 738, 744 (1967). The
Supreme Court vacated and remanded for fur-                Kennedy’s counsel urges that we “adopt the
ther consideration in light of United States v.            holding in Cortez, where this Court, ‘in an
Booker, 125 S. Ct. 738 (2005). Kennedy v.                  abundance of caution and because appellate-
United States, 125 S. Ct. 1016 (2005). We re-              waiver provisions are to be construed against
quested and received supplemental letter briefs            the Government,’ considered the defendant’s
addressing the impact of Booker.                           argument related to Blakely.”

    In his supplemental letter brief on remand,                Unfortunately for Kennedy, however, the
Kennedy SS represented again by counsel SS                 Cortez panel granted rehearing and reversed
correctly perceives that the question at hand              its position. See United States v. Cortez, 2005
regarding the appeal waiver is the following:              U.S. App. LEXIS 11418 (5th Cir. June 16,
“Does a sentence that exceeds an unenhanced                2005) (per curiam) (on rehearing). In Cortez,
guideline range constitute a sentence that ex-             the defendant “argue[d] that he did not waive
ceeds the statutory maximum sentence, which                the right to appeal a sentence above the statu-
is what occurred in this case, or does this refer          tory maximum as that term was defined in
only to increases over the statutory maximum               Blakely.” Id. at *2. Citing United States v.
sentence located within the United States                  McKinney, 406 F.3d 744, 746-47 (5th Cir.
Code?” Counsel wrote this letter on March 7,               Apr. 15, 2005), the Cortez panel reasoned that
2005, at which time he correctly observed the              “[t]he language in the appellate waiver must be
following:                                                 afforded its plain meaning in accord with the
                                                           intent of the parties at the time the plea agree-
   [The Fifth Circuit] has not addressed this              ment was executed.” Cortez, 2005 U.S. App.
   issue in the context of [Booker]. [It] has,             LEXIS 11418, at *2. The court concluded
                                                           that there was “no indication that the parties
                                                           intended that the exception in the appellate
   *                                                       waiver for ‘a sentence exceeding the statutory
     Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                           maximum punishment’ would have a meaning
termined that this opinion should not be published
and is not precedent except under the limited
                                                           other than its ordinary and natural meaning.”
circumstances set forth in 5TH CIR. R. 47.5.4.             Id. (citations omitted). Thus, citing United

                                                       2
States v. Rubbo, 396 F.3d 1330, 1334-35                   objection was raised in the district court. See
(11th Cir. 2005), the Cortez panel reasoned               United States v. Mares, 402 F.3d 511, 520
that in this context, the term “statutory maxi-           (5th Cir. 2005), petition for cert. filed (Mar.
mum” in an appeal waiver means “the upper                 31, 2005) (No. 04-9517). “An appellate court
limit of punishment that Congress has legisla-            may not correct an error the defendant failed
tively specified for violations of a statute.”            to raise in the district court unless there is
Id.1                                                      ‘(1) error, (2) that is plain, and (3) that affects
                                                          substantial rights.’” Id. (quoting United States
   In its letter brief of March 7, 2005, the gov-         v. Cotton, 535 U.S. 625, 631 (2002)).
ernment makes no reference to the waiver of
appeal. We assume, from this, that the gov-                  In its supplemental brief, the government
ernment does not insist that the appeal waiver            concedes plain error “in light of Booker.”2
be enforced in this case. Only because of that            Based solely on facts Kennedy admitted, how-
circumstance, and because appeal waivers are              ever, he could have received the same sentence
not jurisdictional, we will not hold Kennedy to           on remand. It follows that he cannot show
his waiver, which otherwise, under Cortez,                that he would receive a lesser sentence on
would require that the appeal be dismissed.               remand, so none of his substantial rights is
                                                          affected.
   We do note, however, that Kennedy raised
alleged Booker error for the first time in his               The judgments of sentence is AFFIRMED.
petition for writ of certiorari. We have recent-
ly held that, in the context of alleged Booker
error, and “absent extraordinary circumstanc-
es, [we will not] consider an argument raised
for the first time in a petition for [writ of] cer-
tiorari.” United States v. Taylor, 2005 U.S.
App. LEXIS 8701, at *3 (5th Cir. May 17,
2005) (per curiam).

   There are no extraordinary circumstances
here. If we were to consider Kennedy’s is-
sues, we would review for plain error, because
Kennedy concedes that no Sixth Amendment                     2
                                                               Because Kennedy admitted to facts sufficient
                                                          to sustain his sentence under Booker, his only re-
                                                          maining claim is that he nonetheless is entitled to
   1
      Other circuits similarly have concluded that        be sentenced under an advisory, instead of manda-
Blakely and Booker do not alter the plain meaning         tory, guideline regime. “Technically, this is a
of “statutory maximum” as defined in waiver of            “Fanfan error, not a Booker error.” United States
appeal provisions in plea agreements. See United          v. Martinez-Lugo, 2005 U.S. App. LEXIS 10432,
States v. West, 392 F.3d 450 (D.C. Cir. 2004);            at *5 (5th Cir. June 7, 2005) (per curiam) (refer-
United States v. Blick, 2005 U.S. App. LEXIS              ring to Ducan Fanfan, the second defendant in the
9742, at *19 (4th Cir. May 27, 2005); United              consolidated opinion in Booker). See United States
States v. Luebbert, 2005 U.S. App. LEXIS 9972,            v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005) (per
at *3 (6th Cir. June 1, 2005); United States v.           curiam) (discussing the difference between Booker
Green, 405 F.3d 1180, 1191-94 (10th Cir. 2005).           and Fanfan error).

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