USA v. Butler

Filing 920060411

Opinion

United States Court of Appeals Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

F I L E D
April 11, 2006 Charles R. Fulbruge III Clerk

No. 04-11142 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CEDRIC DEMICHAEL BUTLER, Defendant-Appellant. -------------------Appeal from the United States District Court for the Northern District of Texas USDC No. 3:04-CR-100-ALL-G -------------------Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges. PER CURIAM:* Cedric Demichael Butler appeals the 71-month sentence imposed following his guilty plea conviction for possession of a firearm by a felon. 18 U.S.C. §§ 922(g)(1), 924(a)(2). He

argues that his Sixth Amendment rights were violated at sentencing in violation of Blakely v. Washington, 542 U.S. 296 (2004), because his sentence was enhanced on the basis of facts not alleged in the indictment, admitted by him, or proved to a jury beyond a reasonable doubt. The Government argues that the

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-11142 -2appeal is barred by the appeal waiver provision in Butler's plea agreement. Butler contends that the waiver does not bar the

appeal because the waiver contained an exception for an appeal of a sentence in excess of the statutory maximum punishment and because at the time of his plea "Blakely was not the law in the Fifth Circuit or any federal jurisdiction." The record reflects that Butler knowingly and voluntarily waived his right to appeal his sentence. See United States v.

Burns, 433 F.3d 442, 450-51 (5th Cir. 2005); United States v. Bond, 414 F.3d 542, 545-46 (5th Cir. 2005); United States v. Cortez, 413 F.3d 502, 503 (5th Cir.), cert. denied, 126 S. Ct. 502 (2005). on appeal. AFFIRMED. The appeal waiver is enforceable and bars his claims