                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                            F I L E D
                    In the                                   June 21, 2005
United States Court of Appeals                           Charles R. Fulbruge III
          for the Fifth Circuit                                  Clerk
              _______________

                m 04-10386
              _______________




       UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

                   VERSUS

         LAWAYLON HACKWORTH,

                                   Defendant-Appellant.


      _________________________

  Appeal from the United States District Court
      for the Northern District of Texas
             m 3:03-CR-324-4-H
    ______________________________
          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before DAVIS, SMITH, and DENNIS,                             Facts used to increase a criminal defen-
  Circuit Judges.                                            dant’s sentence beyond an otherwise appli-
                                                             cable statutory maximum must be charged
PER CURIAM:*                                                 by indictment and proven to a jury beyond
                                                             a reasonable doubt or established by judi-
   Lawaylon Hackworth pleaded guilty of                      cial confession. Here, the district court de-
conspiring to steal firearms from a federally li-            parted upward from Hackworth’s statutory
censed firearms dealer and to receive, possess,              maximum sentence on the basis of facts
conceal, and dispose of stolen firearms. The                 neither found by a jury nor stipulated to by
plea agreement waived Hackworth’s right to                   Hackworth. Didn’t the district court re-
appeal his sentence except for “(a) a direct                 versibly err when enhancing Hackworth’s
appeal of (i) a sentence exceeding the statutory             sentence on the basis of such unproven
maximum punishment, (ii) an upward depar-                    facts?
ture from the guideline range deemed applica-
ble by the district court, or (iii) an arithmetic            The government moved to dismiss on the
error at sentencing, and (b) a claim of ineffec-          basis of the explicit waiver of appeal contained
tive assistance of counsel.”                              in the plea agreement. Hackworth did not
                                                          oppose the motion. We granted it and dis-
   After departing downward two levels under              missed the appeal.
U.S.S.G. § 5K1.1, the district court sentenced
Hackworth to fifty-one months’ imprisonment,                  After Booker was announced, Hackworth
a sentence within the applicable guideline                filed a petition for writ of certiorari. The Su-
range and well below the statutory maximum                preme Court vacated and remanded for further
of five years. In his appeal, however,                    consideration in light of Booker. Hackworth v.
Hackworth challenges the application of the               United States, 125 S. Ct. 1424 (2005). We re-
sentencing guidelines under Blakely v. Wash-              quested and received supplemental letter briefs
ington, 124 S. Ct. 2531 (2004), which we                  addressing the impact of Booker.
construe as also a challenge under United
States v. Booker, 125 S. Ct. 738 (2005), which               In its letter brief, the government argues
was issued after Hackworth filed his brief.               that the appeal should once again be dismissed
                                                          on the basis of the waiver of appeal contained
   Hackworth argues that his sentence was en-             in the plea agreement. In his letter, Hack-
hanced by facts found by the judge instead of             worth’s attorney makes no reference to the ap-
by a jury, in violation of Booker. Hackworth              peal waiver and offers no explanation of why
framed his only issue on appeal as follows:               the waiver should not be enforced.

                                                             We conclude that Hackworth is foreclosed
   *                                                      by the waiver from presenting his issues on
    Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                          appeal. To the extent that his opening brief
termined that this opinion should not be published
and is not precedent except under the limited cir-
                                                          can be deemed to present the argument that
cumstances set forth in 5TH CIR. R. 47.5.4.               the term “statutory maximum in an appeal

                                                      2
waiver means the maximum sentence that can
be imposed without judge-made factfindings,
that issue is foreclosed by United States v.
Cortez, 2005 U.S. App. LEXIS 11418, at *2
(5th Cir. June 16, 2005) (per curiam) (on re-
hearing), in which this court held that “the
exception for a sentence imposed above the
statutory maximum shall be afforded its natural
and ordinary meaning of ‘the upper limit of
punishment that Congress has legislatively spe-
cified for violations of a statute” (citing United
States v. Rubbo, 396 F.3d 1330, 1334-35
(11th Cir. 2005); United States v. West, 392
F.3d 450, 460-61 (D.C. Cir. 2004)).1

   The appeal is DISMISSED.




   1
      Accord United States v. Blick, 2005 U.S.
App. LEXIS 9742, at *19 (4th Cir. May 27,
2005); United States v. Luebbert, 2005 U.S. App.
LEXIS 9972, at *3 (6th Cir. June 1, 2005); United
States v. Green, 405 F.3d 1180, 1191-94 (10th
Cir. 2005).

                                                     3
