United States v. White ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4371
GAVIN RODERICK WHITE, a/k/a Joe
White,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Jackson L. Kiser, Senior District Judge.
(CR-97-28)
Argued: March 2, 1999
Decided: June 8, 1999
Before ERVIN, Circuit Judge,
VOORHEES, United States District Judge for the
Western District of North Carolina, sitting by designation,
and FABER, United States District Judge for the
Southern District of West Virginia, sitting by designation.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: David Leonard Heilberg, LAW OFFICE OF DAVID L.
HEILBERG, Charlottesville, Virginia, for Appellant. Ray B. Fitzger-
ald, Jr., Assistant United States Attorney, Charlottesville, Virginia, for
Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney,
Charlottesville, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Gavin White pled guilty to one count of possession of cocaine base
with intent to distribute in violation of 21 U.S.C.§ 841(a)(1) (1994)
and received a sentence of 262 months imprisonment. He now
appeals the district court's denial of his motion to suppress evidence
seized during a consent search of his vehicle and his person. Finding
that he did not preserve his right to contest that ruling, we dismiss the
appeal.
I.
During the early morning of January 25, 1997, Officer Daniel
Board stopped White on suspicion of drunk driving after observing
the truck White was driving cross over the right boundary line four
times and nearly strike the curb. Officer Board approached the driv-
er's side of the vehicle, detected the odor of alcohol, and informed
White of the reason for the stop. White agreed that he had been driv-
ing erratically, but stated that he was tired and needed to go home and
rest.
Upon Officer Board's request for identification, White stated that
he did not have his driver's license with him. White then provided a
name, date of birth, and social security number which matched a valid
license issued to someone besides White.
Officer Board, after completing a check of the license information,
returned to the car and told White that he was on crime patrol in the
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area and would like to have permission to search White's vehicle and
person. White responded, "No, go ahead."
About that time, Officer Philip Giles arrived to provide back-up.
Officer Board asked White to go and stand with Officer Giles during
the search of the truck. Officer Board returned to White's vehicle,
conducted a search, and found nothing other than three unopened
beers.
Following his search of the truck, Officer Board returned to where
White and Officer Giles were standing. Officer Board asked White
again for consent to search his person. White hesitated, but responded
affirmatively. Officer Board then asked White what was in his pock-
ets. White reached into his pocket and withdrew lip balm and pocket
change. Officer Board asked if White had anything else in his pocket.
White reached in his pocket and pulled out approximately $200 in
cash. Officer Board asked him if that was all he had in his pocket.
White reached into his pocket and withdrew $300. Officer Board once
again asked if there was anything else in his pocket. White reached
into his pocket and withdrew a small film canister, handing it to Offi-
cer Board, who turned it over to Officer Giles. Officer Board asked
White what else he had in his pocket. At this point, White reached
into his pocket and removed an object but kept it concealed in his
hand. About this time, Officer Giles stated that the item in the film
canister was a razor blade. White then opened his hand, dropped the
bowl of a pipe, and began running from Officers Board and Giles.
About 20 to 25 feet from the truck, White threw down a plastic bag
containing crack cocaine. The officers chased him for a short while,
eventually abandoning the chase and returning to collect the evidence.
White filed a motion to suppress the crack cocaine. The motion
was denied orally by the court following a hearing. Subsequently,
White pled guilty pursuant to a written plea agreement. The Court
conducted a plea and Rule 11 hearing where White, represented by
counsel, entered an unconditional plea of guilty to one count of pos-
session with intent to distribute cocaine base.
II.
White contends that the district court erred in denying his motion
to suppress evidence obtained from the search. We decline to review
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the merits of the district court's denial of White's motion to suppress.
By pleading guilty without reserving his right to appeal under Fed. R.
Crim. P. 11(a)(2), White is foreclosed from appealing nonjurisdic-
tional defects, including the denial of a motion to suppress evidence.
Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v.
Willis, 992 F.2d 489, 490 (4th Cir. 1993). Once a plea of guilty has
become final, the Court's inquiry is limited to whether the underlying
plea was both counseled and voluntary. United States v. Broce, 488
U.S. 563, 569 (1989). Prior to accepting White's guilty plea in this
case, the district court conducted a standard plea colloquy followed
by a summary of the evidence. Fed. R. Crim. P. 11. White agreed that
he fully understood the plea proceeding and that the factual summary
was accurate. Based on this record, the plea was both counseled and
voluntary. Accordingly, White is foreclosed from challenging the
denial of his motion to suppress on direct appeal.
III.
White also asserts that he received ineffective assistance of counsel
because counsel failed to advise him of the proper method to preserve
his suppression issue pursuant to Fed. R. Crim. P. 11(a)(2). "The rule
in this circuit is that a claim of ineffective assistance should be raised
in a 28 U.S.C. § 2255 motion in the district court rather than on direct
appeal, unless the record conclusively shows ineffective assistance."
United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992) (citations
omitted). Based on our review of the record, we find no such show-
ing. This claim, therefore, is not properly before us.
DISMISSED
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