The Sixth Circuit has agreed with others that pre-Blakely waivers of the right to appeal preclude Booker challenges. See United States v. Bradley, No. 03-6328. At first glance, I suspected that the authoring Judge, Sutton, was on the losing end of the Barnett en banc vote, as he did not apply Barnett when considering whether there was a constitutional violation, and asserted that mandatorily applying the guidelines to impose a sentencing enhancement based on prior convictions is proper (c.f. United State v. Gonzalez, unpublished):
. Bradley’s enhancement arose from his status as a "career offender" under § 4B1.1 of the Sentencing Guidelines, to which he stipulated in his plea agreement, and indeed it is that stipulation that forms the central premise of his ineffective-assistance claim. The Sixth Amendment does not apply to agreed-upon facts; it regulates the decisionmaker of disputed facts. See Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004) (holding that "the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant") (some emphasis removed).
Bradley is mistaken in contending that his sentencing enhancement violates the Sixth Amendment, even after Booker
As I look at it some more (and all I really do is look at this stuff, please don't think of this as considered analysis), Judge Sutton addresses the curious distinction between Booker and Fanfan:
That Bradley does not have a tenable constitutional claim, however, does not prove the absence of a tenable statutory claim. Because the statutory-severance remedy adopted by Booker sweeps more broadly (in terms of affected sentences) than the constitutional violation that the Court sought to fix, see 125 S. Ct. at 769, Bradley may fairly say that all parties to this dispute—Bradley, his lawyer, the government and the district court—suffered from the misapprehension that the federal Sentencing Guidelines were mandatory, not advisory, at the time of the plea agreement.
I wonder if this distinction is correct. Clearly, one need not violate the Constitution to fail to follow Fanfan, but does that mean that Fanfan is statutory. It seems to me that Fanfan is akin to Miranda, not required by the constitution, but implemented by the courts to protect the courts from constitutional violations. (That might work as a note topic if you are a student. Have at it if you want.).
In any event, the short of it is clear: if you waived, you waived.