                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                     April 19, 2006
                          FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk
                               No. 04-20364
                             Summary Calendar


                        United States of America
                                            Plaintiff-Appellee,

                                   versus

                       Lewis Olakunle Afolabi,
                also known as Afodunribi Olutoye-Bello
                                           Defendant-Appellant.


            Appeal from the United States District Court
                 For the Southern District of Texas

                        (USDC No. 4:03-CR-349-1)

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

      Lewis Olakunle Afolabi pleaded guilty to conspiracy to commit

bank fraud and was sentenced to 30 months imprisonment and three

years of supervised release.       Afolabi’s plea agreement contained a

appeal waiver provision:

      The defendant is aware that Title 18 United States Code,
      Section 3742 afford a defendant the right to appeal the
      sentence imposed. Knowing that, the defendant waives the
      right to appeal the sentence imposed or the manner in
      which it was determined on the grounds set forth in Title
      18 United States Code, Section 3742, except only that he
      may appeal any upward departure from the [Sentencing
      Guidelines] not requested by the United States.




      *
       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should not be published and is not precedent except under the limited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.
Afolabi argues that this appeal waiver does not preclude his

arguments, raised for the first time, that (1) under United States

v. Booker, his sentence was unconstitutionally increased based on

facts not admitted by him or found by a jury; and (2) the district

court erred in sentencing him under the then-mandatory Sentencing

Guidelines.    The government seeks to enforce the appeal waiver

provision.

     Afolabi raises three arguments, none with merit, in an attempt

to avoid the appeal waiver provision.         First, Afolabi argues that

his appeal waiver does not bar consideration of his Booker claim

because neither Booker or Blakely had been decided at the time he

waived his right to appeal.       We rejected that argument in United

States v. Burns, stating: “We join the other circuits in holding

that an otherwise valid appeal waiver is not rendered invalid, or

inapplicable in an appeal seeking to raise a Booker or Fanfan issue

. . . merely because the waiver was made before Booker.”1       Burns is

slightly distinguishable from this case, although that difference

is of no moment.     Specifically, Afolabi’s appeal waiver occurred

pre-Blakely, while Burns’s occurred post-Blakely, pre-Booker.        The

difference does not matter, as the Supreme Court has held that “a

voluntary plea of guilty intelligently made in the light of the

then applicable law does not become vulnerable because later




     1
      433 F.3d 442, 450-51 (5th Cir. 2005).

                                     2
judicial decisions indicate that the plea rested on a faulty

premise.”2

     Afolabi’s next two contentions are foreclosed by circuit

precedent.    Afolabi argues that his Booker claim fits within the

exception to the appeal waiver for upward departures because the

district court sentenced him based on facts not proven to a jury or

admitted by the defendant.         We rejected that argument in United

States v. McKinney.3     Afolabi argues that the appeal waiver does

not preclude this Court from considering a claim that a sentence

exceeds the statutory maximum. We rejected that argument in United

States v. Bond.4

     In short, Afolabi’s appeal waiver is valid.           The record

plainly indicates that Afolabi knowingly and voluntarily waived his

right to appeal.5    Because the only issues that Afolabi raises on

appeal are precluded by the appeal waiver provision, Afolabi’s

appeal is DISMISSED.




     2
      Brady v. United States, 397 U.S. 742, 757 (1970).
     3
      406 F.3d 744, 746 (5th Cir. 2005).
     4
      414 F.3d 542, 545-46 (5th Cir. 2005).
     5
      McKinney, 406 F.3d at 746.

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