                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                         May 8, 2006

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 05-50029
                              Summary Calendar


UNITED STATES OF AMERICA,

                              Plaintiff-Appellee,

versus

Gordon Dunn,

                              Defendant-Appellant.


            Appeal from the United States District Court
                  for the Western District of Texas
                        USDC No. 5:03-CR-10-1


Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.


PER CURIAM:*

     In August 2003, pursuant to a plea agreement, Gordon Dunn

pleaded guilty in the Western District of Texas to conspiracy to

pass, utter, and possess fictitious obligations1 and to aiding and

abetting in bank fraud (“Texas conviction”).2                He received a

sentence of 60 months of imprisonment for conspiracy and 125 months

of imprisonment for bank fraud, followed by three and five years of


     *
         Pursuant to the 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under limited
circumstances set forth in 5TH CIR. R. 47.5.4.
     1
         18 U.S.C. §§ 371 & 514(a)(2) (carrying a five-year statutory maximum
sentence).
     2
         18 U.S.C. §§ 2 & 1344 (carrying a 30-year statutory maximum sentence).
supervised release, respectively.3 The district court also imposed

a   $200     assessment   and      ordered       Dunn    to   pay   $387,406.87     in

restitution.

      On appeal, Dunn attacks both his conviction and his sentence.

He contends that the district court erred in failing to dismiss the

conspiracy charge because the prosecution violated double jeopardy

and due process.4      He, then, asserts that the district court erred

in denying him credit for time served, in failing to articulate its

consideration of the sentencing factors enumerated in 18 U.S.C. §

3553(a), in failing to comport with United States v. Booker,5 and

in relying on unproved prior convictions to calculate his sentence.

      Dunn     first   argues      that   we     must    dismiss    his    conspiracy

conviction      because   he      pleaded       guilty   to   the   same    crime   in

Arkansas6—the Texas conviction, thus, repugnant to the principles

of double jeopardy and due process.                We review de novo.7       In order

to establish double jeopardy, the defendant bears the initial



      3
        The district court sentenced Dunn to the upper limit recommended by the
Sentencing Guidelines.
      4
         Dunn pursues his claim of a Fifth Amendment violation despite pleading
guilty to the conspiracy charge in the Texas indictment after the magistrate
judge aborted a rearrangement hearing because Dunn had not fully explored the
double jeopardy issue with his counsel.

      5
           543 U.S. 220 (2005).
      6
          Dunn pleaded guilty to conspiracy to defraud through fictitious
instructions in the Western District of Arkansas; he served a 35-month term of
imprisonment and was released in May 2002.
      7
         United Stated v. Gonzales, 40 F.3d 735, 737 (5th Cir. 1994); United
States v. Delgado, 256 F.3d 264, 270 (5th Cir. 2001).

                                            2
burden of demonstrating a prima facie claim.8               Once satisfied, the

burden shifts to the government to show by a preponderance of the

evidence that double jeopardy principles do not bar the later

criminal proceeding.9          As the critical issue concerning double

jeopardy in the instant matter, the government must prove that

separate         agreements   formed   the    basis    of     each   conspiracy

conviction.10 In evaluating whether one or more agreements existed,

we consider, as to each charged conspiracy: (1) the time span, (2)

the persons acting as co-conspirators, (3) the statutory offenses

charged in the indictments, (4) the overt acts charged by the

government or any other description of the offense charged which

indicates the nature and scope of the illicit activity, and (5) the

places where the related events transpired.11

      The Arkansas indictment charged that the prior conspiracy

spanned from May 18, 1999 through October 21, 1999, whereas the

Texas indictment alleged that the conspiracy began in June 1997 and

ended July 29, 2000.          While the statutory offenses are identical,


      8
           Untied States v. Cruce, 21 F.3d 70, 74 (5th Cir. 1994).
      9
           Id.
      10
           United States v. Deshaw, 974 F.2d 667, 673 (5th Cir. 1992).
      11
         United States v. Marable, 578 F.2d 151, 154 (5th Cir. 1978), overruled
by United States v. Rodriguez, 612 F.2d 906, 919 (5th Cir. 1980), as stated in
United States v. Fisher, 106 F.3d 622, 633 n.11 (5th Cir. 1997); United States
v. Delgado, 256 F.3d 264, 272 n.5 (5th Cir. 2001) (stating “[a]lthough a panel
of this Court questioned the vitality of the evidence-based standard for
measuring double jeopardy claims in Fisher, the five-factor test for determining
whether separate conspiracies were involved remains a viable part of the analysis
with respect to double jeopardy claims involving conspiracies” (internal
citations omitted)).

                                        3
the conspiracies, as alleged in the indictments, involve different

persons;12 Dunn remains the only commonality.13               The conspiracies do

not share common overt acts or other similar facts, as both the

banks and the checks used in each scheme differed, for example.

Lastly,    the   events      revealed    in       the   Arkansas   indictment   are

geographically limited to Arkansas, whereas, the Texas indictment

includes    acts   which     occurred        in   Texas,   Arkansas,    Louisiana,

Missouri, and Florida—only one of the 32 overt acts charged in the

Texas indictment occurring in Arkansas.14                Tellingly, according to

the testimony of an investigating agent, Dunn stated that he

“hated”    the   two   men    named     as    co-conspirators      in   the   Texas

indictment and admitted that he “went to Arkansas and started his

own separate scheme,” “to go on his own to work with other people.”

The government has established by a preponderance of the evidence

that the conspiracies involved separate agreements.                     Thus, the

prosecution for conspiracy in the Western District of Texas does

not violate the principles of double jeopardy.                      Although Dunn


      12
         But see United States v. Kalish, 690 F.2d 1144, 1151 (5th Cir. 1982)
(stating “[t]he commission of crimes at different times does not necessarily
prove that the crimes were carried out by different conspiracies” and “that the
conspiracy must take on additional members to accomplish one of its objects does
not in itself establish a different conspiracy”).
      13
         Dunn’s assertion that the “other persons known and unknown” recited in
the Texas indictment include the two co-conspirators named with Dunn in the
Arkansas indictment is speculative and unavailing.
      14
         Dunn makes much of the fact that one of the overt acts alleged in the
Texas indictment occurred in Arkansas on the same day as the final overt act
alleged in the Arkansas indictment. However, this fact does not preclude a
finding that Dunn was involved in two distinct criminal enterprises at the time.


                                         4
argues the due process claim separately, this argument rests and

falls on the same logical framework; the two convictions involved

separate conspiracies and are factually distinct.              Consequently,

Dunn’s due process argument that facts pertinent to the Arkansas

conviction were impermissibly relitigated also lacks merit.

      Dunn’s plea agreement contained a waiver provision in which he

forfeited his statutory right to appeal the sentence, except in the

event of an upward departure from the Sentencing Guidelines.               The

government, therefore, urges that we dismiss Dunn’s assertions of

error because he knowingly and voluntarily waived the right to

appeal his sentence and since the challenge does not fall within

the reserved exception.15

      A defendant may waive his statutory right to appeal as a

condition of a valid plea agreement, if the waiver is both knowing

and voluntary and applies to the instant circumstances.16 Since the

district court did not upwardly depart from the Guidelines, Dunn’s

knowing and voluntary acceptance of the plea agreement, which

contained      the     explicit      and     unambiguous       appeal-waiver

provision—reinforced by the magistrate judge’s admonitions during

      15
         In his reply brief, Dunn argues for the first time that the government
waived its right to rely on the appeal-waiver provision contained in the plea
agreement, for failure to raise the objection below. We decline to address the
merits of this argument. See United States v. Bonilla-Mungia, 422 F.3d 316, 319
(5th Cir. 2005).

      16
           United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992); United
States v. Bond, 414 F.3d 542, 544-46 (5th Cir. 2005) (declining to reach an
assertion of error based on Booker, in light of a waiver-of-appeal provision in
the plea agreement); United States v. McKinney, 406 F.3d 744, 746 (5th Cir.
2005).

                                      5
the arraignment hearings—bars his assertions of sentencing error.17

We AFFIRM the judgment of conviction and DISMISS the sentencing

objections.

      AFFIRMED in part; DISMISSED in part.




      17
         Dunn also argues that he did not waive the right to appeal a sentence
above the statutory maximum, as defined in Blakely v. Washington. 124 S.Ct.
2531, 2537 (The “statutory maximum...is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.”). However, we have held that “the exception for a sentence imposed
above the statutory maximum shall be afforded its natural and ordinary meaning
of the upper limit of punishment that Congress has legislatively specified for
violations of a statute.” United States v. Cortez, 413 F.3d 502, 503 (5th Cir.
2005) (per curiam) (“The language in the appellate waiver must be afforded its
plain meaning in accord with the intent of the parties at the time the plea
agreement was executed. There is no indication that the parties intended that
the exception in the appellate waiver for ‘a sentence exceeding the statutory
maximum punishment’ would have a meaning other than its ordinary and natural
meaning” (internal citations and quotations omitted).). Dunn’s sentence does not
exceed the statutory maximum.

                                       6
