                                                       [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                  FILED
                       ________________________
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 04-11329                     August 3, 2005
                          Non-Argument Calendar            THOMAS K. KAHN
                        ________________________                 CLERK

                  D. C. Docket No. 03-00332-CR-T-23-TBM

UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

     versus

JOSE RESTREPO,

                                                          Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                               (August 3, 2005)

                    ON REMAND FROM THE
              SUPREME COURT OF THE UNITED STATES

Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

     This case is before the Court for consideration in light of United States v.
Booker, 543 U.S. __, 125 S. Ct. 738, __ L. Ed. 2d __ (2005). We previously

affirmed Appellant Restrepo’s 210-month sentence for possession with intent to

distribute cocaine, in violation of 21 U.S.C. § 960(b)(1)(B)(ii). See United States

v. Restrepo, Case No. 04-11329, 125 Fed. Appx. 976 (11th Cir. 2004) (Table)

(“Restrepo I”). The Supreme Court vacated our prior decision and remanded the

case to us for further consideration in light of Booker.

      In his initial brief, Restrepo argued, inter alia, that the district court erred at

sentencing by adjusting his criminal history category after finding he was on

parole at the time he committed the instant offense. More specifically, Restepo

asserted that he was entitled to a jury finding on this fact, pursuant Blakely v.

Washington, 542 U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In a

footnote, we assumed, without deciding, that Restrepo’s Blakely challenge was

outside the scope of the appeal waiver in his plea agreement. See United States v.

Pease, 240 F.3d 938, 943 n.5 (11th Cir. 2001) (noting that defendant had waived

his right to appeal, and assuming, without deciding, that his Apprendi challenge

fell outside the scope of the waiver). Reviewing the claim for plain error, we held

that Restrepo could not establish that the alleged error was “obvious” or “clear

under current law.” We noted that, at the time of our opinion in this case, we had

held it was not “obvious from Blakely that the case would apply to render

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unconstitutional judicial fact finding leading to sentence enhancement under the

Federal Sentencing Guidelines.” See United States v. Duncan, 381 F.3d 1070,

1073 (11th Cir. 2004), vacated and superseded, 400 F.3d 1297 (11th Cir. 2005).

      The Supreme Court subsequently extended its holding in Blakely to the

Federal Sentencing Guidelines in Booker, holding that there was no distinction of

constitutional significance between the Federal Sentencing Guidelines and the

Washington procedures at issue in Blakely. Booker, 125 S. Ct. at 749. “Any fact

(other than a prior conviction) which is necessary to support a sentence exceeding

the maximum authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury beyond a reasonable

doubt.” Id. at 756. In addition, because the mandatory nature of the Guidelines

implicated the Sixth Amendment right to a jury trial, the Supreme Court made the

Guidelines effectively advisory. Id. at 757.

      In this case, Restrepo signed a written plea agreement, thereby waiving his

right to appeal his sentence, “directly or collaterally, on any ground . . . except for

an upward departure by the sentencing judge, a sentence above the statutory

maximum, or a sentence in violation of the law apart from the sentencing

guidelines.” In our first opinion, we noted the following:




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      At the plea colloquy hearing, the magistrate judge carefully reviewed
      the foregoing provisions with Restrepo and specifically detailed the
      effect of the sentence-appeal waiver, stating, inter alia: “by this
      language [an illegal sentence or an upward departure] are the only
      two ways that you could initiate an appeal. The only other way that
      you might be able to appeal would be if the prosecutor appeals and
      then, this says that you would have a right to appeal, as well.” The
      magistrate judge also told Restrepo: “what this provision does when
      you show up at sentencing, if the Judge calculates your guidelines at a
      particular level, and then sentences you within that range, you will
      not be able to appeal that sentence, even if it is worse, harsher, longer
      than you anticipated, as long as it’s a lawful sentence.” The
      magistrate judge asked Restrepo if he understood the appeal waiver
      and he responded that he did.

Restrepo I at 3.    We previously concluded that Restrepo’s plea agreement,

including the appeal-waiver provision, was made knowingly and voluntarily.

Id. at 4-5.   The appeal waiver included a waiver of the right to challenge his

sentence based on Booker error. See United States v. Rubbo, 396 F.3d 1330, 1335

(11th Cir. 2005) (“[T]he right to appeal a sentence based on Apprendi /Booker

grounds can be waived in a plea agreement. Broad waiver language covers those

grounds of appeal.”). Accordingly, we reinstate our previous opinion in this case

affirming Restrepo’s conviction.

      AFFIRMED.




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