UNITED STATES of America, Plaintiff-Appellee, v. Leonardo GARCIA, Defendant-Appellant, 144 F. App'x 558

ORDER Leonardo Garcia pleaded guilty to methamphetamine charges, see 21 U.S.C. §§ 846, 841(a)(1), and was sentenced to a total of 188 months’ imprisonment. His plea agreement includes an appeal waiver made contingent on receiving a sentence at “the minimum level of the applicable sentencing guidelines range,” and though his cooperation with the government earned him a sentence below the 235 to 293-month range that otherwise would have applied, see U.S.S.G. § 5K1.1, Garcia appeals anyway. He argues that United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), requires resentencing.

The government asks that we enforce the waiver and dismiss the appeal. Garcia filed his opening brief before our decision in United States v. Bownes, 405 F.3d 634 (7th Cir.2005), which holds that appeal waivers like this one executed before Booker are enforceable whether or not the parties anticipated that decision, id. at 636-37; see United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir.2005); United States v. Peterson, 414 F.3d 825, 828-29 (7th Cir.2005).

Garcia seeks to circumvent Bournes by arguing that a waiver cannot be enforced against a defendant who is sentenced to a term of imprisonment above the “statutory maximum,” see, e.g., United States v. Hicks, 129 F.3d 376, 377 (7th Cir.1997), which, Garcia says, is what happened to him. And while Title 21 expressly authorizes up to 20 years’ imprisonment for dealing in the smallest amounts of methamphetamine, see 21 U.S.C. § 841(b)(1)(C); Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir.2000), Garcia reasons that after Booker and Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the phrase “statutory maximum” means, not the longest term allowed by the code

section defining the offense, but instead the guideline range calculated without judicial factfinding. We rejected this argument implicitly in Bownes, 405 F.3d at 636-37, and did so explicitly in United States v. Lockwood, 416 F.3d 604, 608 (7th Cir.2005). DISMISSED.