In U.S. v. Grinard-Henry, No. 04-12677 (Feb. 11, 2005), the Court denied a defendant’s Booker-based motion for reconsideration of the Court’s order dismissing his appeal, finding that the defendant had waived his right of appeal as part of his plea agreement.
The Court noted that the appeal waiver preserved the defendant’s right to appeal a sentence "above the statutory maximum." Reaffirming its recent holding in U.S. v. Rubbo, 2005 WL 120507 (11th Cir. Jan. 21, 2005), the Court held that this language referred only to the relevant statutory maximum, not to the Guideline maximum as construed in Blakely/Booker. The Court further noted that the appeal waiver preserved the defendant’s right to appeal "a sentence in violation of law apart from the sentencing guidelines." The Court found that this language did not permit the defendant to raise a Booker challenge to the application of the sentencing guidelines. The Court pointed out that at his plea colloquy the defendant acknowledged the district court’s power to impany any sentence "pursuant to the sentencing guidelines."
