United States v. Hurtado-Aguilar , 176 F. App'x 467 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 11, 2006
Charles R. Fulbruge III
Clerk
No. 04-11094
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR HURTADO-AGUILAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-361-P
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Hector Hurtado-Aguilar appeals following his guilty-plea
conviction and sentence for conspiracy to possess with intent to
distribute more than 500 grams of methamphetamine in violation of
21 U.S.C. §§ 841(a)(1) and 846.
Hurtado-Aguilar contends that the appellate-waiver provision
in his plea agreement does not preclude the instant appeal
because his claim is, under Blakely v. Washington, 542 U.S. 296(2004), a claim that his sentence exceeds the applicable
statutory maximum. Further, he argues that because Blakely was
*
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this opinion should not be published and is not precedent except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.
No. 04-11094
-2-
not applicable at the time of his waiver, it was impossible for
him to make a valid waiver of his rights under Blakely. The
Government disagrees and seeks to enforce the appellate-waiver
provision.
The record reflects that Hurtado-Aguilar knowingly and
voluntarily waived his right to appeal his sentence. See United
States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Hurtado-
Aguilar’s sentence did not exceed the statutory maximum. See
United States v. Cortez, 413 F.3d 502, 503 (5th Cir.), cert.
denied, 126 S. Ct. 502 (2005); United States v. Bond, 414 F.3d
542, 545-46 (5th Cir. 2005). Further, the fact that Blakely and
United States v. Booker, 543 U.S. 220 (2005), were decided after
Hurtado-Aguilar entered his guilty plea does not invalidate the
otherwise valid plea. See United States v. Burns, 433 F.3d 442,
450-51 (5th Cir. 2005). Therefore, Hurtado-Aguilar’s claims are
barred by the appellate-waiver provision in his plea agreement.
AFFIRMED.