                              UNPUBLISHED ORDER
                           Not to be cited per Circuit Rule 53



        United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                            Argued September 12, 2005
                            Decided December 1, 2005

                                        Before

                          Hon. RICHARD A. POSNER, Circuit Judge

                          Hon. ILANA DIAMOND ROVNER, Circuit Judge

                          Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 04-4092

UNITED STATES OF AMERICA,  )                     Appeal from the United
    Plaintiff-Appellee,    )                     States District Court for
                           )                     the Northern District of
         v.                )                     Illinois, Eastern Division.
                           )
ISMAEL HERNANDEZ-HERNANDEZ,)                     No. 04 CR 451
    Defendant -Appellant.  )
                           )                     Charles R. Norgle, Sr., Judge.


                                       ORDER

       Ismael Hernandez-Hernandez pled guilty to one count of illegal reentry of a
previously deported alien in violation of 8 U.S.C. § § 1326(a) and (b)(2). As part of
his plea agreement, Hernandez-Hernandez agreed to have his sentence determined
using the Sentencing Guidelines as mandatory. The district court sentenced
Hernandez-Hernandez to 57 months’ imprisonment, the bottom of the mandatory
Guidelines range. Hernandez-Hernandez appeals this sentence and we dismiss for
lack of jurisdiction.

       Hernandez-Hernandez, a citizen of Mexico, was deported from the United
States in October 2000 after a Utah conviction for attempted sexual assault in the
third degree. In November 2003, Hernandez-Hernandez reentered the United
States without obtaining the necessary express consent of the U.S. Attorney
Appeal No. 04-4092                                                             Page 2


General for reapplication for admission. Hernandez-Hernandez remained in the
United States and was apprehended by law enforcement officers on January 6,
2004
in Aurora, Illinois. On September 3, 2004, Hernandez-Hernandez pled guilty to one
count of illegal reenty pursuant to a written plea agreement. In the plea agreement
and at the change of plea hearing, Hernandez-Hernandez agreed to have his
sentence determined under the Sentencing Guidelines “regardless of what occurs
before the Supreme Court” concerning the constitutionality of those Guidelines. At
the time Hernandez-Hernandez entered his plea, the Supreme Court had granted
certiorari for review of this court’s decision in United States v. Booker, 375 F.3d 508
(7th Cir. 2004). Hernandez-Hernandez’s attorney explained the potential
ramifications of Blakely v. Washington, 542 U.S. 296 (2004), to his client, and
Hernandez-Hernandez agreed to accept the court’s sentence using the Sentencing
Guidelines as mandatory, so long as the court confined itself to facts admitted in
the plea, an agreement to which the defendant concedes the court adhered.

       “It is well established that a plea agreement is treated as a contract.” United
States v. Berheide, 421 F.3d 538, 542 (7th Cir. 2005). When a defendant and the
government enter into a plea agreement in which the defendant agrees to be
sentenced under the United States Sentencing Guidelines, and the court accepts
that agreement, then the defendant “bargained for the right to be sentenced under
the mandatory guideline regime” and has “waived his right to any possible
sentencing benefit that Booker might have afforded him.” Id. Moreover, when a
defendant validly waives his right to the only relief requested on appeal, the waiver
“deprives us of jurisdiction.” United States v. Barnes, 83 F.3d 934 (7th Cir. 1996).
In Berheide, we remanded for resentencing because the district court “selected a
guidelines range by relying on a clearly erroneous factual finding” that affected the
sentence imposed. Berheide, 421 F.3d at 542. However, since Berheide agreed in
his plea agreement to be sentenced under the Sentencing Guidelines, we held that,
on remand, the court must apply the Sentencing Guidelines “as mandatory.” Id. As
in Berheide, Hernandez-Hernandez entered into a plea agreement with the
government in which he agreed “to have his sentence determined under the
Sentencing Guidelines.” R. 14 at 8. Likewise, Hernandez-Hernandez waived his
right to “any possible sentencing benefit that Booker might have afforded him.”
Berheide, 421 F.3d at 542. Having waived his right to a non-mandatory application
of the Sentencing Guidelines, we cannot grant the relief that Hernandez-
Hernandez requests. Thus, we DISMISS the appeal for lack of jurisdiction.
