United States v. Afolabi

*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should not be published and is not precedent except under the limited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
April 19, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-20364
Summary Calendar
United States of America
Plaintiff-Appellee,
versus
Lewis Olakunle Afolabi,
also known as Afodunribi Olutoye-Bello
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(USDC No. 4:03-CR-349-1)
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Lewis Olakunle Afolabi pleaded guilty to conspiracy to commit
bank fraud and was sentenced to 30 months imprisonment and three
years of supervised release. Afolabi’s plea agreement contained a
appeal waiver provision:
The defendant is aware that Title 18 United States Code,
Section 3742 afford a defendant the right to appeal the
sentence imposed. Knowing that, the defendant waives the
right to appeal the sentence imposed or the manner in
which it was determined on the grounds set forth in Title
18 United States Code, Section 3742, except only that he
may appeal any upward departure from the [Sentencing
Guidelines] not requested by the United States.

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1433 F.3d 442, 450-51 (5th Cir. 2005).
2
Afolabi argues that this appeal waiver does not preclude his
arguments, raised for the first time, that (1) under United States
v. Booker, his sentence was unconstitutionally increased based on
facts not admitted by him or found by a jury; and (2) the district
court erred in sentencing him under the then-mandatory Sentencing
Guidelines. The government seeks to enforce the appeal waiver
provision.
Afolabi raises three arguments, none with merit, in an attempt
to avoid the appeal waiver provision. First, Afolabi argues that
his appeal waiver does not bar consideration of his Booker claim
because neither Booker or Blakely had been decided at the time he
waived his right to appeal. We rejected that argument in United
States v. Burns, stating: “We join the other circuits in holding
that an otherwise valid appeal waiver is not rendered invalid, or
inapplicable in an appeal seeking to raise a Booker or Fanfan issue
. . . merely because the waiver was made before Booker.”1 Burns is
slightly distinguishable from this case, although that difference
is of no moment. Specifically, Afolabi’s appeal waiver occurred
pre-Blakely, while Burns’s occurred post-Blakely, pre-Booker. The
difference does not matter, as the Supreme Court has held that “a
voluntary plea of guilty intelligently made in the light of the
then applicable law does not become vulnerable because later

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2Brady v. United States, 397 U.S. 742, 757 (1970).
3406 F.3d 744, 746 (5th Cir. 2005).
4414 F.3d 542, 545-46 (5th Cir. 2005).
5McKinney, 406 F.3d at 746.
3
judicial decisions indicate that the plea rested on a faulty
premise.”2
Afolabi’s next two contentions are foreclosed by circuit
precedent. Afolabi argues that his Booker claim fits within the
exception to the appeal waiver for upward departures because the
district court sentenced him based on facts not proven to a jury or
admitted by the defendant. We rejected that argument in United
States v. McKinney.3 Afolabi argues that the appeal waiver does
not preclude this Court from considering a claim that a sentence
exceeds the statutory maximum. We rejected that argument in United
States v. Bond.4
In short, Afolabi’s appeal waiver is valid. The record
plainly indicates that Afolabi knowingly and voluntarily waived his
right to appeal.5 Because the only issues that Afolabi raises on
appeal are precluded by the appeal waiver provision, Afolabi’s
appeal is DISMISSED.

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