                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                               File Name: 05a0235p.06

                        UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                  X
                              Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                   -
                                                   -
                                                   -
                                                      No. 03-5598
          v.
                                                   ,
                                                    >
 FREDERICK BEN LUEBBERT,                           -
                           Defendant-Appellant. -
                                                  N
                   On Remand from the United States Supreme Court.
                  No. 02-00142—R. Allan Edgar, Chief District Judge.
                                          Submitted: March 15, 2005
                                      Decided and Filed: June 1, 2005
             Before: MERRITT and MOORE, Circuit Judges; DUGGAN, District Judge.*
                                              _________________
                                                    COUNSEL
ON BRIEF: Nikki C. Pierce, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE,
Greeneville, Tennessee, for Appellant. Christopher D. Poole, ASSISTANT UNITED STATES
ATTORNEY, Chattanooga, Tennessee, for Appellee.
    MERRITT, J., delivered the opinion of the court, in which DUGGAN, D. J., joined.
MOORE, J. (p. 3), delivered a separate dissenting opinion.
                                              _________________
                                                  OPINION
                                              _________________
       MERRITT, Circuit Judge. Following the Supreme Court’s decision in United States v.
Booker, 125 S. Ct. 738 (2005), the Supreme Court vacated our earlier decision dismissing
defendant’s appeal in this case based on his “waiver of appeal” and remanded the case to us for
“further consideration in light of” the Booker case. We have reconsidered our earlier decision and
again conclude that the appeal should be dismissed because of defendant’s waiver.
        In this case, the defendant Luebbert entered a guilty plea under a plea agreement with the
government. The question before us now is whether the defendant’s waiver of appeal waives appeal
of a violation of his Sixth Amendment rights resulting from findings of fact by the District Judge

         *
          The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of Michigan, sitting by
designation.


                                                           1
No. 03-5598           United States v. Luebbert                                                 Page 2


that increase or enhance the sentence above the level the defendant would otherwise have received
under the guidelines for the particular elements of the offense to which he pled guilty.
       The waiver of appeal provision in the instant case states:
       The defendant additionally waives the right to appeal his sentence on any ground . . .
       other than any sentence imposed in excess of the statutory maximum, and any
       punishment to the extent it constitutes an upward departure from the guideline range
       deemed most applicable by the sentencing court.
In this provision of the plea agreement the defendant excepts from his waiver a sentence imposed
above the “statutory maximum” and any “upward departure” imposed under the guidelines.
        In two recent decisions of our Court, United States v. Bradley, 400 F.3d 459 (6th Cir. 2005),
and United States v. Yoon, 398 F.3d 802 (6th Cir. 2005), we have held that waiver of appeal
provisions in a plea agreement effectively waive appeal of Booker-type violations. We hold that the
language of the waiver of appeal provision excepting from the waiver any sentence above the
“statutory maximum,” or any “upward departure,” does not serve to distinguish this case from the
Bradley and the Yoon cases.
        The “statutory maximum” exception in the plea agreement refers to the upward limit of the
statute charged in the indictment to which the defendant pled guilty. It does not refer to the
“maximum sentence” under the guidelines which a judge may impose on the basis of the facts
admitted by the defendant in his guilty plea. Such a “guideline maximum” is not the same as a
“statutory maximum.” We agree with two of our sister circuits that waiver of appeal with such
language excepting sentences imposed above the “statutory maximum” refers only to “the upper
limit of punishment that Congress has legislatively specified for violation of a statute.” United
States v. Rubbo, 396 F.3d 1330, 1334 (11th Cir. 2005); see also United States v. West, 392 F.3d 450,
459-61 (D.C. Cir. 2004).
        There is not any real ambiguity in the meaning of the plea agreement now before us. The
plea agreement was entered into prior to the decision in the Booker case, and it does not seem
reasonable to give the phrase “statutory maximum” a post-Booker definition (i.e., the maximum
sentence a judge may impose under the guidelines on the basis of the facts admitted by the
defendant). This interpretation of the waiver of appeal is reinforced by the language of the plea
agreement itself that no guideline sentence is meant to give a right of appeal except “an upward
departure from the guideline range.” This specific reference to the right to appeal a particular type
of guideline sentence (“an upward departure from the guideline range”) waives any appeal from
other types of guideline sentences such as simple enhancements, as in this case. If a guideline
enhancement is to be treated as a “sentence in excess of the statutory maximum,” the parties would
surely have spelled out in the plea agreement other such exceptions just as they spelled out the
exception for “an upward departure from the guideline range.” The inclusion of only one type of
guideline sentence indicates an intent to exclude enhancements and other types of guideline
sentences that fall within the “statutory maximum.” The “statutory maximum” exception, therefore,
does not serve to distinguish this case from the Bradley and Yoon cases previously decided by our
Court, cases which we are obligated to follow.
        Therefore, in light of the waiver of appeal provision of the plea agreement, we conclude that
this appeal has been waived and the case must be dismissed.
       Accordingly, it is so ordered.
No. 03-5598           United States v. Luebbert                                                Page 3


                                        ________________
                                            DISSENT
                                        ________________
       KAREN NELSON MOORE, Circuit Judge, dissenting. Because I believe that Luebbert’s
plea agreement does not unambiguously waive Luebbert’s right to raise a Sixth Amendment
challenge to his sentence on the basis of United States v. Booker, 125 S. Ct. 738 (2005), I
respectfully dissent.
        Luebbert’s plea agreement explicitly provides that Luebbert has not waived his right to
appeal “any sentence imposed in excess of the statutory maximum.” Joint Appendix at 12. The
scope of this reservation of appellate rights is ambiguous, however, because the plea agreement does
not explain when a sentence will be deemed to be “in excess of the statutory maximum.” While I
agree with the majority that it is reasonable to interpret the “statutory maximum” exception as
“refer[ring] to the upward limit of the statute charged in the indictment to which the defendant pled
guilty,” Maj. Op. at 2, I disagree with the majority that this is the only reasonable interpretation of
the “statutory maximum” exception.
        In Booker and Blakely v. Washington, 124 S. Ct. 2531 (2004), the Supreme Court explained
that when a sentence rests on judge-found facts rather than facts found by a jury or admitted by the
defendant, the sentence exceeds the relevant “statutory maximum.” See Booker, 125 S. Ct. at 749
(“Our precedents . . . make clear ‘that the ‘statutory maximum’ for Apprendi purposes 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.’”) (quoting Blakely, 124 S. Ct. at 2537). Thus, when a defendant
raises a Booker-based Sixth Amendment challenge to his or her sentence based on judicial fact-
finding, the defendant can be understood to be claiming that his or her sentence is “in excess of the
statutory maximum.”
         Unlike the majority, I believe that it is more appropriate to treat the statutory-maximum
exception as ambiguous rather than to speculate about the parties’ intended meaning. See Smith v.
Stegall, 385 F.3d 993, 999 (6th Cir. 2004) (“One fundamental principle of contract interpretation
is that primary importance should be placed upon the words of the contract. Unless expressed in
some way in the writing, the actual intent of the parties is ineffective, except when it can be made
the basis for reformation of the writing.”) (internal quotation marks and citation omitted). Because
“[a]mbiguities in a plea agreement must be construed against the government,” United States v.
Fitch, 282 F.3d 364, 367-68 (6th Cir. 2002); see United States v. Johnson, 979 F.2d 396, 399-400
(6th Cir. 1992) (“Both constitutional and supervisory concerns require holding the government to
a greater degree of responsibility than the defendant . . . for imprecisions or ambiguities in the plea
agreements.”) (internal quotation marks and citation omitted), the statutory-maximum exception in
Luebbert’s plea agreement should be construed as permitting Luebbert to appeal his sentence on
Booker grounds. See United States v. Cortez, No. 04-10152, 2005 WL 66068, at **1 (5th Cir. Jan.
10, 2005) (“The waiver in Cortez’s plea agreement contained an exception for sentences imposed
above the statutory maximum. Thus, out of an abundance of caution and because appellate-waiver
provisions are to be construed against the Government, the court will consider Cortez’s Blakely
argument.”) (citation omitted); see also Morris v. United States, — S. Ct. —, No. 04-9299, 2005 WL
697344 (Apr. 25, 2005) (granting certiorari, vacating, and remanding for resentencing in light of
Booker in case in which petition for certiorari argued that “statutory maximum” exception in
defendant’s plea agreement allowed review of defendant’s Booker claim, notwithstanding plea
agreement’s waiver-of-appeal provisions).
       Thus, I respectfully dissent.
