United States v. Salvador Gonzalez-Hernandez , 472 F. App'x 322 ( 2012 )

Case: 11-30802 Document: 00511913439 Page: 1 Date Filed: 07/09/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 9, 2012
No. 11-30802
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SALVADOR GONZALEZ-HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:10-CR-128-1
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges:
PER CURIAM:*
Salvador Gonzalez-Hernandez (Gonzalez) pleaded guilty to possession of
more than five kilograms of cocaine with intent to distribute. He was sentenced
to 87 months in prison. He now appeals the district court’s denial of his motion
to suppress evidence he contends was obtained as the result of an
unconstitutional search. We hold that Gonzalez waived his right to appeal the
suppression ruling by entering an unconditional guilty plea.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-30802 Document: 00511913439 Page: 2 Date Filed: 07/09/2012
No. 11-30802
A voluntary and unconditional guilty plea waives all nonjurisdictional
defects in the prior proceedings, including the right to raise any further
objections based on a district court’s denial of a motion to suppress. United
States v. Stevens, 487 F.3d 232, 238 (5th Cir. 2007). Although a defendant may
plead guilty conditionally and preserve appeal rights, the plea must be in
writing, must have the consent of the prosecution and approval of the court, and
must explicitly designate the issues being preserved for appeal. FED. R. CRIM.
P. 11(a)(2); United States v. Wise, 179 F.3d 184, 186-87 (5th Cir. 1999).
The written plea agreement contains no evidence of any reservation of
rights. Further, there is no evidence in the record that Gonzalez expressed an
intent to plead guilty conditionally or that the Government and the court did not
oppose such a plea, which might excuse technical noncompliance with Rule
11(a)(2). See Stevens, 487 F.3d at 238. Gonzalez’s opening brief does not address
whether his plea was conditional or unconditional, and he did not file a reply
brief responding to the Government’s assertion of waiver. Further, the record
demonstrates that the plea was voluntary. See id. In light of the foregoing,
Gonzalez may not appeal the district court’s suppression ruling. See Wise, 179
F.3d at 187.
Gonzalez’s appeal is entirely without merit and we dismiss it as frivolous.
See 5TH CIR. R. 42.2. In addition, we caution counsel that pursuing an appeal
despite an unconditional plea and then failing to address that issue in a reply
brief after it was raised by the Government in its brief needlessly wastes judicial
resources and will invite sanctions. See United States v. Gaitan, 171 F.3d 222,
223-24 (5th Cir. 1999) (imposing sanctions for similar conduct).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.
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