433 F.3d 442 (5th Cir. 2005), 04-11357, United States v. Burns

Docket Nº:04-11357.
Citation:433 F.3d 442
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Creadell BURNS, Defendant-Appellant.
Case Date:December 13, 2005
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 442

433 F.3d 442 (5th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,


Creadell BURNS, Defendant-Appellant.

No. 04-11357.

United States Court of Appeals, Fifth Circuit.

Dec. 13, 2005

Page 443

Delonia Anita Watson, Fort Worth, TX, for U.S.

Jason Douglas Hawkins, Dallas, TX, for Burns.

Appeal from the United States District Court for the Northern District of Texas

Before GARWOOD, PRADO and OWEN, Circuit Judges.

GARWOOD, Circuit Judge:

Creadell Burns seeks to appeal his sentence on the ground that the district court erred by treating the Federal Sentencing Guidelines as mandatory. Finding that Burns entered into a valid appeal waiver that encompasses this appeal, we dismiss Burns's appeal.

Proceedings Below

On November 13, 2002, Burns and six co-defendants were indicted in the United States District Court for the Northern District of Illinois. The twenty-two count indictment charged Burns with one count of devising and participating with others in a scheme to defraud banks (count one) and four counts of specific instances of bank fraud and aiding and abetting (counts 11 through 14), all in violation of 18 U.S.C. § 1344 and § 2. On August 4, 2003, Burns was taken into federal custody in the Northern District of Texas. On September 30, 2003, Burns indicated he wanted to plead guilty, waived his right to a trial in the Northern District of Illinois, and consented to the disposition of his case in the Northern District of Texas. On June 8, 2004, the case was transferred to the Northern District of Texas.

On July 21, 2004, in exchange for the dismissal of the remaining counts, Burns pleaded guilty to a single count of bank fraud (count 11 of the indictment) pursuant to a June 22, 2004 written plea agreement containing the following appeal waiver:

"BURNS waives his rights, conferred by 28 U.S.C. § 1291 and 18 U.S.C. § 3742, to appeal from his conviction and sentence. He further waives his right to contest his conviction and sentence in any collateral proceeding, including proceedings under 28 U.S.C. § 2241 and 28 U.S.C. §2255, on any ground, except for claims of ineffective assistance of counsel. BURNS, however, reserves the rights (a) to bring a direct appeal of (i) a sentence exceeding the statutory maximum punishment, (ii) an upward departure from the guideline range deemed

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applicable by the district court, or (iii) an arithmetic error at sentence, and (b) to challenge the voluntariness of his plea of guilty or this waiver."

After the guilty plea was accepted and entered, Burns, in his September 2004 objections to the Presentence Report, objected, under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), which had been handed down June 24, 2004, to the use of the Federal Sentencing Guidelines (Guidelines) to determine his sentence. At sentencing on November 3, 2004, the district court overruled Burns's objection based on this court's July 12, 2004 decision in United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), vacated, --- U.S. ----, 125 S.Ct. 1003 (2005), that Blakely did not apply to the Guidelines. With an offense level of 15 and a criminal history category of I, the applicable Guidelines range for Burns was 18 to 24 months' imprisonment and three to five years' supervised release. The district court, following the Guidelines, sentenced Burns to a twenty-four month term of imprisonment and a three-year term of supervised release. Burns was also ordered to pay restitution, jointly and severally with his co-offenders, in the amount of $500,137.03. The remaining counts of the indictment were then dismissed as to Burns pursuant to the plea agreement. Burns at no time sought to withdraw his plea. On November 4, 2004, Burns timely filed his notice of appeal.

Burns's appeal relies on the Supreme Court's January 12, 2005 decision in the consolidated cases of United States v. Booker and United States v. Fanfan, 543 U.S. 220, 125 S.Ct. 738 (2005), which, among other things, held that Blakely did apply to the Guidelines. In his original brief, Burns argued that his appeal waiver did not apply to his appeal "because a defendant cannot waive a right that did not exist at the time of the supposed waiver." Pointing to the appeal waiver, the government promptly filed a motion to dismiss, which was denied by a motions panel of this court without comment. The government then filed a motion for reconsideration in light of United States v. McKinney, 406 F.3d 744 (5th Cir. 2005). In denying the government's motion for reconsideration, the motions panel noted that the McKinney opinion was not on point because the defendant in McKinney had not challenged the validity of his appeal waiver, but had instead argued that an explicit exception to his appeal waiver was applicable. The motions panel also noted that this court has not yet addressed the specific argument raised by Burns.

Burns, who was taken into federal custody on August 3, 2003, has now completed his term of imprisonment, and is currently on supervised release. Because the statute under which he was convicted did not require a term of supervised release, he now seeks remand for partial recommencing as to supervised release under advisory Guidelines.


The district court had jurisdiction under 18 U.S.C. § 3231, and this court has jurisdiction under 28 U.S.C. § 1291.


The imposition of a sentence under the then-mandatory Guidelines is what this court has termed Fanfan error. See United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir. 2005). Burns argues that the district court committed Fanfan error by following the Guidelines' then-mandatory requirement to sentence Burns to at least three years of supervised release following

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any sentence to imprisonment for more than one year for a Class B felony, 1 see U.S.S.G. §§ 5D1.1, 5D1.2(a)(1), where no statute required any term of supervised release for the offense of conviction (although three years' supervised release following imprisonment is and was statutorily authorized for the offense of conviction under 18 U.S.C. § 3583(a) & (b)(1)). He seeks only vacation of his term of supervised release and remand to the district court to determine whether a term of supervised release is appropriate and, if so, of what length.

A. Standard of Review

Because Burns objected below to the use of the Guidelines to determine his sentence, review of this error would be under the harmless error standard. United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). Before review for harmless error, 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. Melancon, 972 F.2d 566, 567 (5th Cir. 1992).

B. The right to appeal a sentence conferred by 18 U.S.C. § 3742

There is no constitutional right to appeal a criminal sentence. See Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 3312 (1983); see also United States v. Melancon, 972 F.2d 566, 567 ("The right to appeal is a statutory right, not a constitutional right."). Congress has, however, provided a federal criminal defendant with a limited statutory right to appeal his sentence, as follows:

"(a) Appeal by a defendant. – A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence –

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines; or

(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range; or

(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable."

18 U.S.C.A. § 3742.

These four statutory grounds are the only grounds provided for a defendant to appeal an otherwise final sentence.

A sentence imposed pursuant to Fanfan error would normally be appealable under section 3742(a)(1) as a sentence "imposed in violation of law," or, arguably, under section 3742(a)(2) as a sentence "imposed as a result of an incorrect application of the sentencing guidelines." 2 With certain

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specified exceptions, however, Burns expressly waived the rights conferred by section 3742 to appeal his sentence. Burns does not argue that any of the exceptions stated in the plea agreement to its appeal waiver provisions is applicable. 3 He does not claim that his guilty plea is invalid or seek to set it aside. Burns also does not argue that his plea agreement, or his appeal waiver in general or as a whole, is invalid. 4 Instead, Burns argues that the appeal waiver should not, or may not validly, apply to waive appeal of the Fanfan error which he asserts because at and before his sentencing there was no right to be sentenced under advisory, non-mandatory guidelines as subsequently provided for in Justice Breyer's Booker remedial opinion.

C. Burns's argument that he could not validly waive appeal of the Fanfan issue.

Burns claims that it was impossible for him to have validly waived his right to appeal the Fanfan error here complained of because Booker/Fanfan had not been

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decided at the time of his plea. In support, Burns cites the following statement made by this court in Williams v. Alabama, 341 F.2d 777 (5th Cir. 1965) : "A waiver, in any kind of a case, is an intentional relinquishment of an existing right. 'The right . . . allegedly waived must be in existence and be known to exist by the party...

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