UNITED STATES of America, Plaintiff-Appellee, v. Kenneth B. MACQUEEN, Defendant-Appellant, 146 F. App'x 837

ORDER Kenneth MacQueen pleaded guilty to one count of mail fraud, 18 U.S.C. § 1341. The plea agreement stipulated that Mac-Queen defrauded investors of at least $6,600,000 through a Ponzi scheme, although the government eventually calculated a smaller loss amount. The agreement expressly waived MacQueen’s right to appeal his sentence under 18 U.S.C. § 3742 or any other grounds. The only exception was for a claim of involuntariness or ineffective assistance of counsel directly related to the plea agreement itself.

The district court sentenced Mac-Queen to 135 months’ incarceration and ordered that he pay $5,173,323 in restitution to the victims of his fraud. On appeal MacQueen argues that he is entitled to a limited remand under United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and United States v. Paladino, 401 F.3d 471 (7th Cir.2005), despite the waiver clause in his plea agreement, because the district court imposed his sentence under the mistaken belief that the sentencing guidelines were mandatory. MacQueen cites United States v.

Loutos, 383 F.3d 615 (7th Cir.2004) , for the proposition that a Sixth Amendment violation under Booker is a non-waivable claim. However, this court has held since Loutos that appeal waivers such as MacQueen’s are enforceable, even when the law changes after the plea agreement is signed. See United States v. Bownes, 405 F.3d 634, 636-37 (7th Cir.2005) ; see also United States v. Lockwood, 416 F.3d 604, 608 (7th Cir.2005). Loutos, which does not discuss the effect of the appeal waiver on a Booker challenge, cannot be read as inconsistent with Bournes. MacQueen’s appeal is DISMISSED.