United States v. Cortez
| Decision Date | 16 June 2005 |
| Docket Number | No. 04-10152 Summary Calendar.,04-10152 Summary Calendar. |
| Citation | 413 F.3d 502 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Juan Domingo CORTEZ, also known as J.D. Cortez, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Roger L. McRoberts, Lubbock, TX, for Plaintiff-Appellee.
Juan Domingo Cortez, Fort Worth, TX, for Defendant-Appellant.
ON REHEARING
Appeal from the United States District Court for the Northern District of Texas.
Before GARZA, DeMOSS and CLEMENT, Circuit Judges.
We granted panel rehearing in light of the holding in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) is applicable to the federal sentencing guidelines. We now withdraw our earlier opinion and substitute the following. See FED. R. APP. P. 40(a)(4)(C).
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.
The Government filed a motion to dismiss based on an appeal waiver in Cortez's plea agreement. The record reflects that Cortez knowingly and voluntarily waived his right to appeal his sentence in his plea agreement and, thus, that the waiver was validly made. United States v. Robinson, 187 F.3d 516, 517 (5th Cir.1999). However, Cortez argues that he did not waive the right to appeal a sentence above the statutory maximum as that term was defined in Blakely.
The language in the appellate waiver must be afforded its plain meaning in accord with the intent of the parties at the time the plea agreement was executed. United States v. McKinney, 406 F.3d 744, 745-47 (5th Cir.2005). There is no indication that the parties intended that the exception in the appellate waiver for "a sentence exceeding the statutory maximum punishment" would have a meaning other than its ordinary and natural meaning. Id.; see 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). Thus, 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 specified for violations of a statute." Rubbo, ...
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U.S. v. Burns
...however, we first address the government's argument that Burns validly waived his right to bring this appeal. See United States v. Cortez, 413 F.3d 502 (5th Cir.2005); McKinney. Whether an appeal waiver is valid is a question of law that receives de novo review. See United States v. Melanco......
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United States v. Mbadugha, CRIMINAL ACTION NO. H-14-120-4
...only when it exceeds the maximum allowed by statute. United States v. Bond, 414 F.3d 542, 546 (5th Cir. 2005); United States v. Cortez, 413 F.3d 502, 503 (5th Cir.), cert. denied, 546 U.S. 962 (2005). When, however, a defendant alleges that his counsel was ineffective in negotiating a plea ......
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United States v. Diaz
...appellate waiver ... in accord with the intent of the parties at the time the plea agreement was executed." United States v. Cortez , 413 F.3d 502, 503 (5th Cir. 2005) (per curiam). "In the absence of evidence that the parties to the agreement intended ... a specialized, non-natural definit......
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U.S. v. Bond, 04-41125 Summary Calendar.
...violation of a statute." Id. at 1334-35. This is the approach taken most recently by this court in United States v. Cortez, 413 F.3d 502, 2005 WL 1404944 (5th Cir. June 16, 2005) (per curiam) (on Cortez "argue[d] that he did not waive the right to appeal a sentence above the statutory maxim......