Pre-Booker plea agreement appeal waiver may indicate acceptance of mandatory sentencing guidelines system

SENTENCING/APPEAL United States v. Green, No. 04-5105, ___ F.3d ___(10th Cir. May 6, 2005)(N.D. Oklahoma). Defendant’s appeal of district court’s imposition of reduced sentence in response to his untimely motion for correction of sentence under Rule 35(a) of Federal Rules of Criminal Procedure. HELD: (1) District court did not have jurisdiction under Rule 35(a) of Federal Rules of Criminal Procedure to resentence defendant more than seven days after orally imposing earlier sentence. (2) Defendant’s waiver of appellate rights made before Supreme Court’s decision in Blakely v. Washington, 124 S.Ct. 2531 (2004), is enforceable and bars consideration of his claims of sentencing errors asserted under United States v. Booker, 125 S.Ct. 738 (2005). (3) Where defendant entered into plea agreement specifying that district court was required to consider applicable sentencing guidelines and could depart from those guidelines under some circumstances, defendant indicated acceptance of mandatory sentencing guidelines regime that existed before Booker. (4) Term "statutory maximum," as used in Hahn analysis of plea agreement appeal waiver provision refers to upper limit of punishment that Congress legislatively specified for violation of a given statute. Use of Blakely/Booker definition of "statutory maximum" in Hahn analysis is improper because doing so would render it nearly impossible for any defendant to ever waive Sixth Amendment Booker rights. (5) Not enforcing appeal waiver provision of plea agreement merely because defendant would receive higher sentence than received as result of district court’s jurisdictionally infirm decision to resentence him would constitute miscarriage of justice because this defendant, out of all defendants who knowingly and voluntarily waived appellate rights, would obtain relief from that waiver, only because of district court’s improper decision to resentence. Read the opinion here.