                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-23-2005

USA v. Arrezola-Lopez
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3187




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                                                               NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                    __________

                                       No. 04-3187
                                       __________

                             UNITED STATES OF AMERICA

                                             v.

                              RAFAEL ARREZOLA-LOPEZ,
                                                Appellant.
                                     __________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                               (Crim. No. 03-cr-00834-1)
                      District Judge: Honorable Cynthia M. Rufe

                                        __________

                        Submitted Under Third Circuit L.A.R. 34.1(a)
                                    November 8, 2005
                                      ___________

                 Before: ROTH, FUENTES and GARTH, Circuit Judges
                          (Opinion Filed: November 23, 2005)
                                     __________

                                         OPINION
Garth, Circuit Judge:

       On December 18, 2003, a grand jury indicted Rafael Arrezola-Lopez on one count

of illegal re-entry after deportation in violation of 8 U.S.C. §1326(a) and (b)(2). Mr.

Arreozola-Lopez pleaded guilty. In his written plea agreement, he waived his right to

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appeal, subject to a few exceptions. The relevant language in the plea agreement read:


                In exchange for the undertaking made by the government in
                entering this plea agreement, the defendant voluntarily and
                expressly waived all rights to appeal or collaterally attack the
                defendant’s conviction, sentence, or any other matter relating
                to this prosecution . . .[N]otwithstanding the waiver provision
                . . . the defendant may file a direct appeal but may raise only
                claims that (1) the defendant’s sentence exceeds the statutory
                maximum; or (2) the sentencing judge erroneously departed
                upward from the otherwise applicable sentencing guideline
                range.

The transcript of the plea colloquy makes clear that Mr. Arrezola-Lopez entered into this

waiver knowingly and voluntarily. See United States v. Khattak, 273 F.3d 557 (3d Cir.

2001). On July 26, 2004, Mr. Arrezola-Lopez was sentenced to 18 months’

imprisonment, a sentence that fell at the low end of the applicable guideline range (18-24

months), and well below the maximum allowed by the criminal provision he violated (20

years).

          Mr. Arrezola-Lopez now asks us to vacate his sentence and remand for

resentencing under United States v. Booker, 125 S. Ct. 738 (2005). He argues that, in

violation of the rule of Booker, the District Court enhanced his sentence based on facts

that were neither charged in the indictment, admitted, nor proved to a jury beyond a

reasonable doubt.1 He also argues that remand is warranted because, in sentencing him,



          1
         Mr. Arrezola-Lopez made this argument at the sentencing hearing, as well. The
District Court rejected it on its merits not only orally at the hearing, but also in a
memorandum opinion written in accordance with LAR 3.1 after Mr. Arrezola-Lopez filed

                                               2
the District Court treated the Sentencing Guidelines as mandatory, which was erroneous

under Booker.

       We lack jurisdiction to consider these arguments because Mr. Arrezola-Lopez

waived his right to appeal except in limited circumstances, none of which are present

here. Mr. Arrezola-Lopez argues that circumstances falling within the waiver exception

are present here because in his plea agreement he reserved the right to challenge a

sentence that “exceeds the statutory maximum,” and he wishes to challenge a sentence

that he claims exceeds the “statutory maximum,” in the sense that the Booker court used

that term. As several courts have recognized, however, the phrase “statutory maximum,”

as used in Booker, reflects a different meaning than is reflected by that same phrase when

it is used in appellate waivers, at least those entered (as Mr. Arrezola-Lopez’s was) before

the Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004) and Booker.2

The Booker court used the phrase “statutory maximum” to mean “the maximum sentence

a judge may impose solely on the basis of the facts reflected in the jury verdict or

admitted by the defendant.” Booker, 125 S. Ct. at 749. In appellate waivers such as the



his Notice of Appeal.
       2
         See United States v. Adams, No. 04-3127, 2005 WL 2562005, at *2-4 (3d Cir.
Oct. 13, 2005); United States v. Bond, 414 F.3d 542, 545-546 (5th Cir. 2005); United
States v. Luebbert, 411 F.3d 602, 603-604 (6th Cir. 2005); United States v. Blick, 408
F.3d 162, 169-170 & n.7 (4th Cir. 2005); United States v. Green, 405 F.3d 1180, 1191-
1194 (10th Cir. 2005); United States v. Rubbo, 396 F.3d 1330, 1334-1335 (11th Cir.),
cert. denied, 2005 WL 2493867 (2005); United States v. West, 392 F.3d 450, 459-461
(D.C. Cir. 2004) (Roberts, J.).

                                              3
one quoted above, on the other hand, the phrase “statutory maximum” means the

maximum punishment prescribed by Congress in the criminal statute violated. Mr.

Arrezola-Lopez’s sentence did not exceed the maximum punishment prescribed by

Congress in the criminal statute he violated, 8 U.S.C. §1326(b)(2), and so his challenge is

not the type excepted from the waiver in his plea agreement.

       Mr. Arrezola-Lopez argues in the alternative that a finding that he waived his right

to appeal a sentence that he claims is unconstitutional under Booker would represent “a

miscarriage of justice.” Khattak, 273 F.3d at 562. Our opinion in United States v.

Lockett squarely rejects that position. 406 F.3d 207, 214 (3d Cir. 2005) (“where a

criminal defendant has voluntarily and knowingly entered into a plea agreement in which

he or she waives the right to appeal, the defendant is not entitled to resentencing in light

of Booker”).

       For the foregoing reasons, we will dismiss Mr. Arrezola-Lopez’s appeal for lack of

jurisdiction.




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