United States v. Lopez-Armenta ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-10081
Plaintiff-Appellee, D.C. No.
v.  CR-03-00154-
SAUL LOPEZ-ARMENTA, HDM(VPC)
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted December 8, 2004
San Francisco, California
Memorandum Disposition Filed December 20, 2004
Withdrawn March 10, 2005
Filed March 10, 2005
Before: Alex Kozinski, William A. Fletcher, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
3175
UNITED STATES v. LOPEZ-ARMENTA 3177
COUNSEL
Michael K. Powell, Assistant Federal Public Defender, Reno,
Nevada, for the appellant.
Craig S. Denney, Assistant United States Attorney, Reno,
Nevada, for the appellee.
OPINION
BYBEE, Circuit Judge:
Saul Lopez-Armenta was indicted for various charges
related to the possession and distribution of methamphet-
amine and cocaine. After unsuccessfully moving to suppress
evidence obtained through a search of his vehicle, Lopez
entered an unconditional plea of guilty as to all counts listed
in the indictment. He now appeals the district court’s denial
of his motion to suppress, arguing that the police lacked both
probable cause and reasonable suspicion and that his plea
should not be construed as waiving his right to challenge the
lower court’s ruling on these issues.
3178 UNITED STATES v. LOPEZ-ARMENTA
For the following reasons, we conclude that Lopez waived
his right to appeal pretrial constitutional defects when he
entered an unconditional guilty plea. Accordingly, we dismiss
the appeal.
I
On the basis of evidence uncovered during the search of his
vehicle, Lopez was indicted for conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§ 841, 846 and
18 U.S.C. § 2, possession with intent to distribute metham-
phetamine in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2,
possession with intent to distribute cocaine in violation of 21
U.S.C. § 841, and interstate travel in aid of racketeering in
violation of 18 U.S.C. § 1952(a)(3). He moved to suppress
evidence obtained during the search, and the district court
denied the motion after an evidentiary hearing. Lopez subse-
quently pled guilty to all counts listed in the indictment with-
out the benefit of a written plea agreement reserving his right
to appeal the district court’s ruling on his motion to suppress.1
Approximately three months later, Lopez was sentenced to
64 months in prison. At the sentencing hearing, the govern-
ment stated, on the record, that the “defendant pled guilty
without the benefit of a plea agreement to preserve his right
to appeal the Court’s determination on the suppression hear-
ing.” Also, after imposing the sentence, the court stated, on
the record, “There was no plea agreement in this case. You
have the right to appeal. Any appeal in this case will be filed
in writing within 10 days of today’s date, and I’ll appoint the
Federal Defenders Officer to represent you in the event you
elect to file that written notice of appeal.”
1
As a result of his cooperation, Lopez qualified for a “safety valve”
adjustment, whereby the sentence that he was facing — initially, a 10 year
statutory minimum — was reducible to 64 months. See 18 U.S.C.
§ 3553(f).
UNITED STATES v. LOPEZ-ARMENTA 3179
Lopez subsequently appealed to this court, seeking to chal-
lenge the district court’s denial of his motion to suppress. The
government moved to dismiss the appeal and a motions panel
of this court denied the motion, transferring the case to a mer-
its panel. In so ruling, the motions panel cited our decision in
United States v. Buchanan, 59 F.3d 914 (9th Cir. 1995), for
the proposition that “because the district court stated on the
record at the time of sentencing that appellant had the right to
appeal . . . the district court’s oral pronouncement must con-
trol.”
II
We note, at the outset, that the order of the motions panel,
denying the government’s motion to dismiss, does not pre-
clude us from reaching a contrary decision. Rather, if we con-
clude that Lopez waived his right to bring this appeal, we may
dismiss it notwithstanding the fact that a prior motions panel
denied the government’s motion. See, e.g., United States v.
Nunez, 223 F.3d 956, 958 (9th Cir. 2000) (citing Malone v.
Avenenti, 850 F.2d 569, 571 (9th Cir. 1988)); United States v.
Houser, 804 F.2d 565, 567-68 (9th Cir. 1986). It is to that
inquiry that we now turn.
III
[1] It is undisputed that Lopez pled guilty without the bene-
fit of a written Rule 11(a)(2) plea agreement reserving his
right to appeal the district court’s ruling on his motion to sup-
press. Moreover, it is well-settled that an unconditional guilty
plea constitutes a waiver of the right to appeal all nonjurisdic-
tional antecedent rulings and cures all antecedent constitu-
tional defects. See, e.g., United States v. Floyd, 108 F.3d 202,
204 (9th Cir. 1997); United States v. Cortez, 973 F.2d 764,
766 (9th Cir. 1992). Accordingly, the Supreme Court has
declared:
When a criminal defendant has solemnly admitted in
open court that he is in fact guilty of the offense with
3180 UNITED STATES v. LOPEZ-ARMENTA
which he is charged, he may not thereafter raise
independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry
of the guilty plea. He may only attack the voluntary
and intelligent character of the guilty plea . . . .
Tollett v. Henderson, 411 U.S. 258, 267 (1973). Conse-
quently, by entering an unconditional guilty plea, Lopez
waived his right to bring this appeal, which seeks only to
challenge the district court’s ruling on his motion to suppress.
Nonetheless, in support of this appeal, Lopez points to the
district court’s on-the-record statement at the sentencing hear-
ing, informing him that he had the right to appeal, as well as
the government’s statement, at sentencing, that the “defendant
pled guilty without the benefit of a plea agreement to preserve
his right to appeal the Court’s determination on the suppres-
sion hearing.” Citing our decision in Buchanan, 59 F.3d at
917, he argues that these statements serve to preserve his
appellate rights.
[2] We agree that the statements leave the record ambigu-
ous. Specifically, it is unclear whether the sentencing judge
was referring to Lopez’s right to appeal the ruling on his sup-
pression motion or his sentence, the latter of which is explic-
itly required by Fed. R. Crim. P. 32(j)(1)(B). The
government’s statement is more clear. Its natural reading is
that Lopez had not preserved his right to appeal the suppres-
sion ruling. Cf. Fed. R. Crim. P. 11(a)(2) (“[A] defendant may
enter a conditional plea of guilty or nolo contendere, reserving
in writing the right to have an appellate court review an
adverse determination of a specified pretrial motion.”). With
both statements being made in the same hearing, the apparent
confusion is understandable. Nevertheless, the ambiguity is
ultimately irrelevant for our purposes. Both statements were
made approximately three months after Lopez entered his
unconditional guilty plea, and Lopez “points to no evidence
UNITED STATES v. LOPEZ-ARMENTA 3181
in the record that [his] plea was involuntary at the time that
[he] entered it.” Floyd, 108 F.3d at 204.
Moreover, and contrary to the appellant’s argument, we
find Buchanan inapplicable to these facts. In Buchanan, the
defendant pled guilty to fraud and failure to appear and agreed
to waive appeal if his sentence was set within the Guidelines.
Four months later, at sentencing, he tried to withdraw his plea
because it contained unfavorable stipulations. The district
court noted that he could appeal his “sentencing findings.” 59
F.3d at 916. Rather than withdraw his plea, the defendant and
the government agreed to modify the plea agreement to allow
the parties to argue for a departure. On the following day the
district court sentenced Buchanan and, despite the waiver
clause in the plea agreement, again told him he had the right
to appeal his sentence. Although we concluded that Buchan-
an’s waiver was knowingly and voluntarily entered, we rea-
soned that the district court’s unambiguous advice at his
sentencing hearings, informing Buchanan that he had the right
to appeal his sentence, could have created a reasonable expec-
tation that the defendant was permitted to appeal his sentence.
Indeed, he might have relied on this advice in deciding not to
withdraw his plea, but instead to amend the plea agreement.
Relying on cases involving a conflict between the oral pro-
nouncement of sentence and the written judgment, we held
that the sentencing judge’s oral pronouncement must control,
and proceeded to address the defendant’s sentencing claims
on the merits. Id. at 917-18.
By contrast, in Floyd the defendant was stopped and
searched by DEA agents at Los Angeles International Airport,
and was found to be carrying a large package of cocaine and
cocaine base. She was arrested and later charged with two
counts of possession of cocaine and cocaine base with intent
to distribute. Floyd initially pled not guilty to the charges, and
moved to suppress the evidence discovered during the search
of her person. After the district court denied her motion to
suppress, Floyd changed her plea to guilty on both counts.
3182 UNITED STATES v. LOPEZ-ARMENTA
She did so without the benefit of a plea agreement reserving
her right to appeal the court’s ruling on her motion to sup-
press. Approximately three months later, at Floyd’s sentenc-
ing hearing, her counsel stated: “I will be filing a notice of
appeal in this matter, pursuing the appeal with respect to the
denial of the suppression motion.” Id. at 203. The district
court responded, “Surely,” and the government did not object
to the mention of appealing the suppression motion. Id. Floyd
subsequently filed a timely notice of appeal, claiming that the
district court erred in denying her suppression motion, and the
government moved to dismiss for lack of jurisdiction.
[3] On these facts — two years after Buchanan — we held
that the defendant’s unconditional guilty plea controlled. Id.
at 204. We distinguished two cases in which guilty pleas not
meeting the requirements of Rule 11(a)(2) were held to be
invalid, on the grounds that in both of those cases “there was
evidence at the time of the entry of the plea that the defendant
thought he or she could appeal from the guilty plea.” Id. (cit-
ing Cortez, 973 F.2d at 767-69; United States v. Carrasco,
786 F.2d 1452, 1453-55 (9th Cir. 1986)) (emphasis added).
We found Cortez and Carrasco inapplicable to the facts
alleged in Floyd because approximately three months had
elapsed between the defendant’s unconditional guilty plea and
the ambiguous statement at the sentencing hearing:
Though the exchange at the sentencing hearing was
ambiguous regarding whether she could appeal the
suppression motion, it occurred over three months
after Floyd entered her unconditional guilty plea.
While we are sympathetic to Floyd’s predicament,
she points to no evidence in the record that her plea
was involuntary at the time that she entered it. Her
newly-expressed desire to appeal three months later
cannot somehow relate back to her plea hearing.
That her plea was voluntary when entered is control-
ling; that Floyd may have changed her mind later
does not render her plea invalid.
UNITED STATES v. LOPEZ-ARMENTA 3183
Id. (footnotes omitted).
[4] We are persuaded that this appeal is controlled by
Floyd. While numerous distinctions between the cases might
be drawn, at its core, Buchanan addresses the situation in
which confusion regarding appellate rights arises contempora-
neously with the waiver, while Floyd applies where the defen-
dant attempts to have later confusion “relate back” to his
waiver. Accordingly, we hold that Lopez knowingly and vol-
untarily waived his right to appeal the suppression ruling, and
his waiver was not affected by the district court’s ambiguous
statement three months later at the sentencing hearing.
IV
For the foregoing reasons, the appeal is dismissed.
DISMISSED.