                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 10, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-10152
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN DOMINGO CORTEZ, also
known as J.D. Cortez,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 6:03-CR-24-1-C
                       --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Juan Domingo Cortez appeals his sentence imposed following

his guilty plea to theft or embezzlement concerning programs

receiving federal funds and aiding and abetting.   Cortez was

sentenced to a term of imprisonment of 63 months to be followed

by a three-year term of supervised release.   Cortez was also

ordered to pay restitution in the amount of $805,083.55 and a

fine of $20,000.



     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                             No. 04-10152
                                  -2-

     The Government argues that Cortez waived his right to appeal

his sentence in his plea agreement.    Cortez responds that he did

not waive his right to appeal a sentence above the statutory

maximum and that, under Blakely v. Washington, 124 S. Ct. 2531

(2004), the constitutional statutory maximum sentence that could

be imposed upon him was 41 months.

     The record reflects that Cortez knowingly and voluntarily

executed the waiver contained in his plea agreement and, thus,

the waiver was validly executed.     United States v. Robinson,

187 F.3d 516, 517 (5th Cir. 1999).    However, the Supreme Court

in Blakely held “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.”    Blakely, 124 S. Ct. at 2537 (italics omitted).

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, see United States v.

Somner, 127 F.3d 405, 408 (5th Cir. 1997), the court will

consider Cortez’s Blakely argument.

     Relying on Blakely, Cortez argues that his 63-month sentence

was unconstitutional because there was no proof beyond a

reasonable doubt presented to a jury to support the enhancements

of his offense level based on the abuse of trust or obstruction


     **
          Apprendi v. New Jersey, 530 U.S. 466 (2000).
                           No. 04-10152
                                -3-

of justice. He further argues that under Blakely, the restitution

order is unconstitutional because it was based on facts not

submitted to the jury.

     This court has held that Blakely does not apply to the

federal sentencing guidelines.   See United States v. Pineiro,

377 F.3d 464, 473 (5th Cir.), petition for cert. denied. denied.

filed (U.S. July 14, 2004).   Therefore, Cortez’s arguments under

Blakely are foreclosed.

     Cortez argues that the district court erred in failing to

grant his motion for a downward departure based on his physical

condition.   He also alleges that the fine imposed is erroneous

because the district court did not consider whether the fine

would impair Cortez’s ability to make restitution.   Neither of

these issues are included in the exceptions to Cortez’s voluntary

waiver of his right to appeal his sentence.   Thus, the departure

ruling and the fine are not subject to review.

     The motion is GRANTED, and the judgment of the district

court is AFFIRMED.
