In U.S. v. Rubbo, No. 04-10874 (Jan. 21, 2005), the Court (Carnes, Cox & Mills b.d.) held that an exception to a defendant’s appeal waiver which permitted an appeal if the sentence exceeded the "maximum permitted by statute" did not allow a challenge to a sentence on the basis that it exceeded the "statutory maximum" contemplated by the Supreme Court’s Apprendi/Blakely/Booker decisions.
The Court found that the term "maximum permitted by statute" as used in the plea agreement had a different meaning than the term "statutory maximum" used in the Supreme Court’s recent Sixth Amendment jurisprudence. The plea agreement term referred simply to the "upper limit of punishment that Congress has legislatively specified for violation of a statute," whereas the term "statutory maximum," while seemingly similar, refers to the meaning referenced in the Supreme Court cases. The Court noted that similar words can take on different meanings in different contexts. The Court further noted that the right to appeal a sentence based on Apprendi/Booker can be waived, and held that the defendant did so in her plea agreement.
