United States v. Adrian Butts , 406 F. App'x 217 ( 2010 )


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  •                                                                                        FILED
    NOT FOR PUBLICATION                                      DEC 20 2010
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                                U .S . CO UR T OF AP PE A LS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                              No. 09-50210
    Plaintiff - Appellee,                    D.C. No. 5:07-cr-00126-VAP-1
    v.
    MEMORANDUM *
    ADRIAN BUTTS,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Central District of California
    Virginia A. Phillips, District Judge, Presiding
    Argued and Submitted October 7, 2010
    Pasadena, California
    Before:        WARDLAW and W. FLETCHER, Circuit Judges, and LYNN,**
    District Judge.
    Adrian Butts appeals his conviction and 157 month sentence, following his
    guilty pleas to possession with intent to distribute methamphetamine, in violation
    *
    This disposition is not appropriate for publication and is not precedent except as
    provided by 9th Cir. R. 36-3.
    **
    The Honorable Barbara M. Lynn, U.S. District Judge for the Northern District of
    Texas, sitting by designation.
    1
    of 21 U.S.C. y 841(a)(1) and (b)(1)(A)(viii), and possession of a firearm in
    furtherance of a drug trafficµing crime, in violation of 18 U.S.C. y 924(c). Butts
    pleaded guilty pursuant to a written, unconditional plea agreement. On appeal,
    Butts challenges the district court's denial of his motion to suppress and the
    reasonableness of his sentence. We have jurisdiction under 28 U.S.C. y 1291, and
    we affirm.
    Pursuant to an arrest warrant, law enforcement officers searched Butts's
    residence for his sister, Hazel, a parolee-at-large. During that search, the officers
    entered a room in which they found evidence that illegal drugs were present. After
    obtaining a search warrant, the officers found various drugs and a firearm. Butts
    moved to suppress those items, arguing on various grounds that the search was
    illegal. The district court denied suppression.
    Butts then pleaded guilty to Counts Three and Six of the superseding
    indictment. The plea agreement states, 'By pleading guilty, defendant also gives
    up any and all rights to pursue any affirmative defenses, Fourth Amendment or
    Fifth Amendment claims, and other pretrial motions that have been filed or could
    be filed.' Butts also waived his right to appeal any sentence imposed by the
    district court, provided that (a) the sentence was within the statutory maximum and
    constitutional, (b) the Court did not depart upward in offense level or criminal
    2
    history, (c) the Court determined the total offense level was 31 or below as to
    Count Three, and imposed a sentence within the guideline range for the offense
    level and criminal history as to Count Three, in addition to a consecutive sentence
    of five years as to Count Six.
    During sentencing, the district court found Butts's criminal history category
    to be II, and granted a two level departure for substantial assistance, finding an
    offense level of 29 on Count Three. This determination resulted in a guidelines
    range of 157 to 181 months, including a mandatory consecutive sentence of 60
    months on Count Six. After analyzing the 18 U.S.C. y 3553(a) factors, including
    consideration of Butts's mental health records, the district court imposed a
    sentence of 157 months imprisonment, the bottom of the guideline range.
    The issue of whether a defendant has waived his right to appeal is reviewed
    de novo. United States v. Jeronimo, 
    398 F.3d 1149
    , 1153 (9th Cir. 2005).
    Pursuant to Federal Rule of Criminal Procedure 11(a)(2), Butts could have
    reserved in writing the right to appellate review of a specific pretrial motion, such
    as a motion to suppress. However, an unconditional guilty plea, without a Rule
    11(a)(2) reservation, constitutes a waiver of the right to appeal all nonjurisdictional
    antecedent rulings, including a motion to suppress. United States v. Lopez-
    Armenta, 
    400 F.3d 1173
    , 1175 (9th Cir. 2005) ('[I]t is well-settled that an
    3
    unconditional guilty plea constitutes a waiver of the right to appeal all
    nonjurisdictional antecedent rulings and cures all antecedent constitutional
    defects.') (citing Tollett v. Henderson, 
    411 U.S. 258
    , 267 (1973)).
    Here, Butts µnowingly and intelligently entered into an unconditional guilty
    plea and did not reserve in writing the right to appeal the denial of the motion to
    suppress, and Butts's challenge of the reasonableness of his sentence is covered by
    the express terms of his appellate waiver. Therefore, we are precluded from
    reviewing the trial court's ruling on the motion to suppress or the reasonableness of
    Butts's guidelines sentence. Accordingly, this Court affirms.
    AFFIRMED.
    4
    FILED
    USA v. Butts, No. 09-50210                                                    DEC 20 2010
    MOLLY C. DWYER, CLERK
    U .S . CO UR T OF AP PE A LS
    W. FLETCHER, Circuit Judge, concurring:
    In my view, the written plea agreement did not waive Butts's right to appeal
    his Fourth Amendment claim. The majority relies on the following sentence in the
    plea agreement in support of its holding: 'By pleading guilty, defendant also gives
    up any and all rights to pursue any affirmative defenses, Fourth Amendment or
    Fifth Amendment claims, and other pretrial motions that have been filed or could
    have been filed.' That sentence appears in the section of the plea agreement
    entitled 'WAIVER OF CONSTITUTIONAL RIGHTS.' It does not appear in the
    section of the plea agreement entitled 'LIMITED MUTUAL WAIVER OF
    APPEAL AND COLLATERAL ATTACK.' In context, the quoted sentence is an
    agreement not to 'pursue' a 'Fourth Amendment claim[]' in the district court. It
    is not an agreement to waive the right to appeal the already rendered ruling by the
    district court on Butts's suppression motion.
    However, I would affirm the district court's ruling on Butts's Fourth
    Amendment claim on the merits. The search warrant for Butts's sister was valid.
    The police had reason to believe that she was in the house despite Butts's denial.
    Because they had reason to believe she was in the house, they were justified in
    requiring that the locµed room be opened. When the door to the room was opened,
    1
    the marijuana was in plain view. Based on the presence of the marijuana in the
    room, a second warrant was obtained. This second warrant justified the search of
    the room.
    In all other respects, I agree with the majority.
    2
    

Document Info

Docket Number: 09-50210

Citation Numbers: 406 F. App'x 217

Judges: Wardlaw, Fletcher, Lynn

Filed Date: 12/20/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024