UNITED STATES of America, Plaintiff-Appellee, v. David DURAN, Defendant-Appellant, 142 F. App'x 923

ORDER David Duran, his brother Frank, and several others were part of a drug conspiracy responsible for distributing cocaine and marijuana in Chicago. Duran pleaded guilty pursuant to a written plea agreement to two of the 16 counts charged against him — conspiring to possess with the intent to distribute and to distribute controlled substances, 21 U.S.C. §§ 846, 841(a)(1), and possessing a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A) — and agreed to testify against his brother.

As part of the plea agreement Duran waived his right to appeal his sentence in exchange for concessions by the government. He received a downward departure under U.S.S.G. § 5K1.1 for his cooperation, and was sentenced to a total of 336 months’ imprisonment for both counts, the precise term contemplated by the plea agreement. Despite his waiver Duran appeals, arguing that the district court erred by sentencing him under the formerly mandatory guidelines regime, see United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and contending that a limited remand is warranted under United States v.

Paladino, 401 F.3d 471 (7th Cir. 2005). We cannot reach that issue, however, because his appeal waiver is enforceable. Nothing in Duran’s plea agreement provides an “escape hatch” enabling him to appeal if the law changed to his benefit, and, as we held after Duran filed his brief, Booker does not invalidate the parties’ bargain where there is no such express provision. See United States v. Bownes, 405 F.3d 634, 636 (7th Cir.2005); see also United States v. Roche, 415 F.3d 614, 617-18 (7th Cir.2005); United States v. Cieslowski, 410 F.3d 353, 362 (7th Cir.2005). Our opinion in United States v.

Loutos, 383 F.3d 615 (7th Cir.2004), which does not discuss the effect of the appeal waiver in that case, cannot be read as inconsistent with Bownes. Finally, we note that Booker, in any event, does not undermine bargained-for, lawful sentences like Duran’s that were imposed by the district court pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). See Cieslowski, 410 F.3d at 363-64. Duran’s appeal is DISMISSED.