Creadell Burns seeks to appeal his sentence on the ground that the district court erred by treating the Federal Sentencing Guidelines as mandatory. Finding that Burns entered into a valid appeal waiver that encompasses this appeal, we dismiss Burns's appeal.

On November 13, 2002, Burns and six co-defendants were indicted in the United States District Court for the Northern District of Illinois. The twenty-two count indictment charged Burns with one count of devising and participating with others in a scheme to defraud banks (count one) and four counts of specific instances of bank fraud and aiding and abetting (counts 11 through 14), all in violation of 18 U.S.C. § 1344 and § 2. On August 4, 2003, Burns was taken into federal custody in the Northern District of Texas. On September 30, 2003, Burns indicated he wanted to plead guilty, waived his right to a trial in the Northern District of Illinois, and consented to the disposition of his case in the Northern District of Texas. On June 8, 2004, the case was transferred to the Northern District of Texas.

On July 21, 2004, in exchange for the dismissal of the remaining counts, Burns pleaded guilty to a single count of bank fraud (count 11 of the indictment) pursuant to a June 22, 2004 written plea agreement containing the following appeal waiver:

"BURNS waives his rights, conferred by 28 U.S.C. § 1291 and 18 U.S.C. § 3742, to appeal from his conviction and sentence. He further waives his right to contest his conviction and sentence in any collateral proceeding, including proceedings under 28 U.S.C. § 2241 and 28 U.S.C. § 2255, on any ground, except for claims of ineffective assistance of counsel. BURNS, however, reserves the rights (a) to bring a direct appeal of (i) a sentence exceeding the statutory maximum punishment, (ii) an upward departure from the guideline range deemed applicable by the district court, or (iii) an arithmetic error at sentence, and (b) to challenge the voluntariness of his plea of guilty or this waiver."

After the guilty plea was accepted and entered, Burns, in his September 2004 objections to the Presentence Report, objected, under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), which had been handed down June 24, 2004, to the use of the Federal Sentencing Guidelines (Guidelines) to determine his sentence. At sentencing on November 3, 2004, the district court overruled Burns's objection based on this court's July 12, 2004 decision in United States v. Pineiro, 377 F.3d 464 (5th Cir.2004), vacated, ___ U.S. ___, 125 S. Ct. 1003, 160 L. Ed. 2d 1006 (2005), that Blakely did not apply to the Guidelines. With an offense level of 15 and a criminal history category of I, the applicable Guidelines range for Burns was 18 to 24 months' imprisonment and three to five years' supervised release. The district court, following the Guidelines, sentenced Burns to a twenty-four month term of imprisonment and a three-year term of supervised release. Burns was also ordered to pay restitution, jointly and severally with his co-offenders, in the amount of $500,137.03. The remaining counts of the indictment were then dismissed as to Burns pursuant to the plea agreement. Burns at no time sought to withdraw his plea. On November 4, 2004, Burns timely filed his notice of appeal.

Burns's appeal relies on the Supreme Court's January 12, 2005 decision in the consolidated cases of United States v. Booker and United States v. Fanfan, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), which, among other things, held that Blakely did apply to the Guidelines. In his original brief, Burns argued that his appeal waiver did not apply to his appeal "because a defendant cannot waive a right that did not exist at the time of the supposed waiver." Pointing to the appeal waiver, the government promptly filed a motion to dismiss, which was denied by a motions panel of this court without comment. The government then filed a motion for reconsideration in light of United States v. McKinney, 406 F.3d 744 (5th Cir.2005). In denying the government's motion for reconsideration, the motions panel noted that the McKinney opinion was not on point because the defendant in McKinney had not challenged the validity of his appeal waiver, but had instead argued that an explicit exception to his appeal waiver was applicable. The motions panel also noted that this court has not yet addressed the specific argument raised by Burns.

Burns, who was taken into federal custody on August 3, 2003, has now completed his term of imprisonment, and is currently on supervised release. Because the statute under which he was convicted did not require a term of supervised release, he now seeks remand for partial resentencing as to supervised release under advisory Guidelines.

The district court had jurisdiction under 18 U.S.C. § 3231, and this court has jurisdiction under 28 U.S.C. § 1291.

The imposition of a sentence under the then-mandatory Guidelines is what this court has termed Fanfan error. See United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.2005). Burns argues that the district court committed Fanfan error by following the Guidelines' then-mandatory requirement to sentence Burns to at least three years of supervised release following any sentence to imprisonment for more than one year for a Class B felony,1 see U.S.S.G. §§ 5D1.1, 5D1.2(a)(1), where no statute required any term of supervised release for the offense of conviction (although three years' supervised release following imprisonment is and was statutorily authorized for the offense of conviction under 18 U.S.C. § 3583(a) & (b)(1)). He seeks only vacation of his term of supervised release and remand to the district court to determine whether a term of supervised release is appropriate and, if so, of what length.

Because Burns objected below to the use of the Guidelines to determine his sentence, review of this error would be under the harmless error standard. United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.2005). Before review for harmless error, however, we first address the government's argument that Burns validly waived his right to bring this appeal. See United States v. Cortez, 413 F.3d 502 (5th Cir.2005); McKinney. Whether an appeal waiver is valid is a question of law that receives de novo review. See United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992).

B. The right to appeal a sentence conferred by 18 U.S.C. § 3742

There is no constitutional right to appeal a criminal sentence. See Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 3312, 77 L. Ed. 2d 987 (1983); see also United States v. Melancon, 972 F.2d 566, 567 ("The right to appeal is a statutory right, not a constitutional right."). Congress has, however, provided a federal criminal defendant with a limited statutory right to appeal his sentence, as follows:

"(a) Appeal by a defendant.—A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines; or

(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range; or

(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable."

18 U.S.C.A. § 3742.

These four statutory grounds are the only grounds provided for a defendant to appeal an otherwise final sentence.

A sentence imposed pursuant to Fanfan error would normally be appealable under section 3742(a)(1) as a sentence "imposed in violation of law," or, arguably, under section 3742(a)(2) as a sentence "imposed as a result of an incorrect application of the sentencing guidelines."2 With certain specified exceptions, however, Burns expressly waived the rights conferred by section 3742 to appeal his sentence. Burns does not argue that any of the exceptions stated in the plea agreement to its appeal waiver provisions is applicable.3 He does not claim that his guilty plea is invalid or seek to set it aside. Burns also does not argue that his plea agreement, or his appeal waiver in general or as a whole, is invalid.4 Instead, Burns argues that the appeal waiver should not, or may not validly, apply to waive appeal of the Fanfan error which he asserts because at and before his sentencing there was no right to be sentenced under advisory, non-mandatory guidelines as subsequently provided for in Justice Breyer's Booker remedial opinion.

C. Burns's argument that he could not validly waive appeal of the Fanfan issue.

Burns claims that it was impossible for him to have validly waived his right to appeal the Fanfan error here complained of because Booker/Fanfan had not been decided at the time of his plea. In support, Burns cites the following statement made by this court in Williams v. Alabama, 341 F.2d 777 (5th Cir.1965): "A waiver, in any kind of a case, is an intentional relinquishment of an existing right. `The right . . . allegedly waived must be in existence and be known to exist by the party possessing it. . . .'" Id. at 780-81 (quoting Chambers & Co. v. Equitable Life Assurance Soc., 224 F.2d 338, 345 (5th Cir.1955)).

In Williams, the appellant-prisoner (Williams) appealed the dismissal of his petition for habeas corpus. Id. at 778. It was clear from the record that Williams had been denied the assistance of counsel at his arraignment. Id. at 780. Nonetheless, the State of Alabama apparently assumed that Williams's waiver (at trial) of his right to counsel acted as a retroactive waiver of his right to counsel at arraignment. Id. This court, in rejecting Alabama's assumption of a retroactive waiver by Williams, noted that "[a] present or future right can be waived, but not a right already lost. . . . Williams's waiver of counsel at his trial could not operate prospectively to deprive him of a right to counsel on appeal . . .; nor could his waiver operate retrospectively to deprive him of a right he was no longer in a position to exercise." Id. at 781. In sum, our Williams opinion rejected the implicit waiver of one right based on the explicit waiver of a different right at a different stage in the trial. That situation is not presented in this case because Burns explicitly waived his right to appeal, a future and known right of which he was advised that, as we noted in Williams, can be waived.

The only other case that Burns cites in support of his position is the recent Supreme Court decision in Halbert v. Michigan, ___ U.S. ___, 125 S. Ct. 2582, 162 L. Ed. 2d 552 (2005). Halbert was an indigent defendant who was convicted in Michigan state court on his plea of nolo contendere. Id. at 2595. After sentencing, Halbert asked the trial court to appoint counsel to help him with his application for leave to appeal his sentence. The trial court twice denied his request, noting the second time "that Halbert `does not have a constitutional. . . right to appointment of appellate counsel to pursue a discretionary appeal.'" Id. at 2590 (quoting the Michigan trial court). Proceeding without counsel, Halbert filed an application for leave to appeal, but the Michigan intermediate court of appeal denied his application. Id. Halbert, again pro se, then filed an application to the Michigan Supreme Court, which also denied his application. The narrow issue before the Supreme Court in Halbert was whether the State of Michigan could constitutionally deny appointed appellate counsel to indigents who had been convicted by plea and who sought the assistance of counsel in preparing their application for leave to appeal. The Supreme Court held that Michigan's denial of appointed counsel to indigents for this stage of the proceedings was unconstitutional. Id. at 2590-95.

The presently relevant issue from Halbert is Michigan's contention that Halbert had waived his right to appointed counsel to assist in requesting leave to appeal by pleading nolo contendere. Id. at 2594. The Court dismissed Michigan's waiver argument with the following comments:

"At the time he entered his plea, Halbert, in common with other defendants convicted on their pleas, had no recognized right to appointed appellate counsel he could elect to forgo. Moreover, as earlier observed, the trial court did not tell Halbert, simply and directly, that in his case, there would be no access to appointed counsel. See supra, at 2589; cf. Iowa v. Tovar, 541 U.S. 77, 81, 124 S. Ct. 1379, 158 L. Ed. 2d 209 (2004) (`Waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a "knowing, intelligent ac[t] done with sufficient awareness of the relevant circumstances."' (quoting Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970)))." 125 S. Ct. at 2594.

Footnote seven in the Halbert majority opinion also relates to the waiver analysis, stating in relevant part: "No conditional waiver — `on[e] in which a defendant agrees that, if he has . . . a right, he waives it' — is at issue here. Further, nothing in Halbert's plea colloquy indicates that he waived an `unsettled,' but assumed, right to the assistance of appointed appellate counsel, post-plea." Id. at 2594 n. 7 (citations omitted).5

Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, dissented in Halbert. In a footnote, Justice Thomas expressed his concern about the majority's treatment of Michigan's waiver argument:

"Moreover, the majority's failure to make clear which sources of law are to be considered in deciding whether a right is `no[t] recognized,' ante, at 2594, and hence nonwaivable, is bound to wreak havoc. For instance, suppose that a defendant waived the right to appeal his sentence after the regional Court of Appeals had held that the principle of Blakely v. Washington did not apply to the United States Sentencing Guidelines, but before this Court held the contrary in United States v. Booker. The defendant could claim that, in his circuit, the Sixth Amendment right against the application of the Guidelines was `no[t] recognized,' and hence that the right was nonwaivable." Halbert, 125 S.Ct. at 2604 n. 2 (Thomas, J., dissenting) (internal citations omitted).

Although Burns's situation does match the scenario described by Justice Thomas, there are significant differences between this case and Halbert. The majority's waiver analysis in Halbert does not address the issue raised by Burns. In Halbert, the Court dealt with an implicit waiver that, according to Michigan, necessarily followed from Halbert's nolo contendere plea. In contrast, this case involves a plea agreement with an explicit waiver of the right to appeal. Moreover, the explicit waiver by Burns was part of the consideration for the government's agreement to dismiss the remaining charges in the indictment. Another significant difference is that the Halbert case implicated the criminal defendant's right to counsel, which is a "fundamental constitutional right[]" for which the "`courts indulge every reasonable presumption against waiver.'" Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938) (speaking of the right to counsel and quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S. Ct. 809, 811, 81 L. Ed. 1177 (1937) (speaking of the right to jury trial)). The waiver that Burns challenges, in contrast, deals only with his right to appeal his sentence. Unlike the defendant's right to counsel, the right to appeal is not a fundamental constitutional right. See Jones v. Barnes, 103 S.Ct. at 3312; see also Melancon, 972 F.2d at 567. Yet another difference between Halbert and this case is that the Michigan statute found unconstitutional in Halbert implicated concerns with ensuring equal access to the judicial system for indigent defendants. Halbert, 125 S.Ct. at 2594 n. 8.

"Waivers of constitutional rights[6] not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747 (1970). In determining the validity of a waiver, the court must "consider[] all of the relevant circumstances surrounding it." Id. In Brady, the defendant (Brady) had pleaded guilty, at least in part due to 18 U.S.C. § 1201(a), which made the death penalty applicable only to those defendants who pleaded not guilty. After Brady was convicted and sentenced, section 1201(a) was held unconstitutional in United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968). Following the Jackson decision, Brady sought section 2255 relief claiming that his guilty plea was not valid "because § 1201(a) operated to coerce his plea." Id. at 1466. The Court noted that Brady had been "advised by competent counsel" and that Brady's plea had been "intelligently made." Id. at 1473. Significantly, the Court stated:

"The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. . . . More particularly, absent misrepresentation or other impermissible conduct by state agents, a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise." Id.

This court, in three unpublished opinions, has relied on Brady to dismiss the same argument that Burns raises here.7 All of the other regional circuits have also relied on Brady — or on cases that rely on Brady — to reject arguments similar to the ones that Burns raises here.8 Admittedly, none of the other circuits considered this argument in light of Halbert and the footnote in Justice Thomas's dissent. However, considering the aforementioned distinguishing aspects of Halbert and the fact that the Halbert majority cited approvingly to Iowa v. Tovar, 541 U.S. 77, 124 S. Ct. 1379, 158 L. Ed. 2d 209 (2004), and its reliance on the "sufficient awareness of the relevant circumstances" analysis of Brady, see Halbert, 125 S.Ct. at 2594, we deem it highly unlikely that Halbert's narrow analysis of Michigan's waiver argument would lead any of the other circuits to change their position on the argument presented here.

The terms of Burns's waiver expressly include all of the rights to appeal conferred by 18 U.S.C. § 3742 as well as those conferred by 28 U.S.C. § 1291. Burns, knowing the appellate rights he had, waived all those rights with several specific exceptions, none of which are applicable, or even claimed to be applicable, here.9

We join the other circuits in holding that an otherwise valid appeal waiver is not rendered invalid, or inapplicable to an appeal seeking to raise a Booker or Fanfan issue (whether or not that issue would have substantive merit), merely because the waiver was made before Booker. Apart from being made pre-Booker, Burns's waiver is clearly otherwise valid, voluntary, knowing and intelligent, and applicable to the Fanfan issue which constitutes his sole ground of appeal. Accordingly, Burns's appeal is dismissed.