United States v. Sterritt

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 28, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-11077
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD DALE STERRITT, JR.,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CR-164-1-D
--------------------
Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Richard Dale Sterritt, Jr., appeals from the sentence
imposed following his guilty-plea conviction for conspiracy to
commit securities fraud, money laundering, and filing false tax
returns in violation of 18 U.S.C. § 371.
Sterritt challenges his sentence by arguing that the trial
court erred in its calculation of relevant conduct, in assessing
a leadership role, and in its restitution award. Sterritt waived
the right to appeal his sentence but reserved, inter alia, the

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right to appeal any punishment imposed in excess of a statutory
maximum and any upward departure from the United States
Sentencing Guidelines range deemed most applicable by the
sentencing court.
A defendant may waive his right to appeal if the waiver is
knowing and voluntary. United States v. Robinson, 187 F.3d 516,
517 (5th Cir. 1999). The defendant must know that he “had a
right to appeal his sentence and that he was giving up that
right.” United States v. Portillo, 18 F.3d 290, 292 (5th Cir.
1994) (internal quotation marks and citation omitted). Sterritt
does not challenge his appeal waiver by arguing that the waiver
was made unknowingly or in an involuntary fashion, and the record
indicates that Sterritt was aware of and understood the terms of
his appeal waiver.
Sterritt argues that because his appeal waiver’s reservation
of appeal rights regarding an appeal of a sentence that exceeded
a statutory maximum did not specify a particular statutory
maximum, he has preserved the right to appeal a punishment that
exceeds any statutory maximum. He argues that under Blakely v.
Washington, 124 S. Ct. 2531 (2004), his Guidelines range would
have provided a sentencing range of zero to six months of
imprisonment absent the district court’s determination of facts
that he did not admit and that were not determined by a jury. He
then asserts that under Blakely, the Guidelines range of zero to
six months is the applicable statutory maximum, and because the

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district court’s sentence of 60 months of imprisonment exceeded
this statutory maximum, his appeal waiver does not preclude this
appeal.
Sterritt’s argument that this court should equate the
minimum Guidelines range of zero to six months imprisonment with
the statutory maximum in this case is premised upon his argument
that Blakely invalidates the Guidelines. See blue brief, 6-7,
23-24, and passim. This argument is foreclosed by the court’s
holding in United States v. Pineiro, 377 F.3d 464, 465-66 (5th
Cir.), petition for cert. filed, (July 14, 2004) (No. 04-5263),
in which this court held that Blakely does not extend to the
federal Guidelines.
Sterritt has also filed an unopposed motion to stay
proceedings. He argues that the future of Pineiro is uncertain
because the Supreme Court granted a writ of certiorari in United
States v. Booker, 375 F.3d 508 (7th Cir.), cert. granted, 125 S.
Ct. 11 (2004), and Fanfan v. United States, No. 03-47, D. Me.
(June 28, 2004), 2004 WL 1723114, cert. granted, 125 S. Ct. 12
(2004). Sterritt’s argument that proceedings should be stayed
pending further clarification from the Supreme Court does not
provide authority for granting a stay. Cf. Wicker v. McCotter,
798 F.2d 155, 157-58 (5th Cir. 1986).
Sterritt’s appeal waiver precludes this appeal and the
appeal is DISMISSED. The motion to stay proceedings is DENIED.

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