                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-3093
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
Francisco Marcos Quiroga,                *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: April 15, 2008
                                 Filed: February 9, 2009
                                  ___________

Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
                          ___________

COLLOTON, Circuit Judge.

       A grand jury charged Francisco Marcos Quiroga with one count of possession
with intent to distribute five grams or more of pure methamphetamine within 1000
feet of a playground, in violation of 21 U.S.C. §§ 841(a)(1) and 860(a). Quiroga pled
guilty pursuant to a plea agreement, but the district court1 later granted his motion to
withdraw the plea under Federal Rule of Criminal Procedure 11(d)(2)(B). Quiroga
then moved to suppress evidence seized at the time of his arrest, and moved in limine


      1
        The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
to exclude incriminating statements that he made in the initial plea agreement. After
the district court denied these motions, Quiroga entered a conditional plea of guilty,
pursuant to Rule 11(a)(2), preserving the right to appeal the district court’s adverse
rulings on the motion to suppress and the motion in limine. The district court
sentenced Quiroga to 292 months’ imprisonment. Quiroga appeals the district court’s
pre-trial rulings and his sentence. We affirm.

                                           I.

       On September 21, 2005, Officers Lane Siefken and Jason Stiles responded to
a report of a disturbance at an apartment in Mason City, Iowa. When the officers
arrived, they saw Quiroga run behind the apartment building. The officers walked to
the back of the apartment and saw Quiroga, Quiroga’s live-in girlfriend, Jill Hjelle,
and Hjelle’s mother. Quiroga explained that he lost his temper during an argument
with Hjelle. The officers separated Quiroga and Hjelle and diffused the situation. At
that point, Quiroga and Hjelle left the scene in separate vehicles.

       As the officers walked back to their car, a neighbor approached and said that
when the officers arrived, Quiroga ran to the back of the apartment building and
dropped something over the fence. In the area that the neighbor had identified, the
officers found a plastic bag containing jewelry, a small quantity of cash, a lighter, and
a second clear plastic bag containing a white substance. The officers believed that the
white substance was methamphetamine. To confirm their belief, Stiles took his
trained canine out of the patrol car and gave the dog an “open area” command to
search for drugs. The dog found the plastic bag and indicated that it contained drugs.

       Thinking that Quiroga might return, Stiles returned the bag to its original
location, and positioned himself so that he would be hidden from someone
approaching from the front of the apartment. Three to five minutes later, Quiroga
approached the apartment from the back, through a heavily wooded yard, rather than

                                          -2-
through the driveway in the front. Realizing that Quiroga would see him, Stiles made
his presence known when Quiroga was about fifteen feet from the bag. Quiroga told
Stiles that he had come back to the apartment to pick up a speaker. When Stiles asked
why he had not parked in the driveway in front, Quiroga did not answer. Stiles placed
Quiroga under arrest. During a search incident to arrest, he discovered $3501 on
Quiroga’s person.

       A grand jury charged Quiroga with possession with intent to distribute five
grams or more of pure methamphetamine within 1000 feet of a playground. The
indictment also gave notice that Quiroga was subject to enhanced punishment under
21 U.S.C. § 841(b) because of a prior conviction for a felony drug offense. See 21
U.S.C. § 851; United States v. Roundtree, 534 F.3d 876, 881 (8th Cir. 2008). On
October 12, 2006, Quiroga signed a written plea agreement with the government. The
parties agreed that Quiroga’s base offense level under the advisory guidelines would
be 26, that he would receive a two-level adjustment for distribution of
methamphetamine within 1000 feet of a playground, and that he would qualify for a
two-level downward adjustment for acceptance of responsibility, but reached no
agreement as to the ultimate sentence that would be imposed. Quiroga further agreed
that he would “have no right to withdraw his guilty plea if the sentence imposed is
other than he hoped for or anticipated.”

       Quiroga entered a plea of guilty, which the district court accepted based on the
report and recommendation of a magistrate judge. Two months later, Quiroga filed
a motion to withdraw his plea, arguing that his counsel incorrectly advised him that
he could not be sentenced as a career offender under USSG § 4B1.1. The district
court initially denied the motion, but on reconsideration, allowed Quiroga to withdraw
his plea. United States v. Marcos-Quiroga, 478 F. Supp. 2d 1114, 1144 (N.D. Iowa
2007). The court found that “Marcos-Quiroga’s decision to plead guilty to the offense
charged in this case was based upon his counsel’s assurance that he was not a career
offender . . . and that, but for his counsel’s advice, Marcos-Quiroga would not have

                                         -3-
pleaded guilty to the offense charged in this case.” Id. at 1118. On this basis, the
court concluded that Quiroga had received ineffective assistance of counsel and had
established a fair and just reason to withdraw his plea.

       After withdrawing his guilty plea, Quiroga filed a motion to suppress the
currency found on his person after his arrest, arguing that the officers lacked probable
cause to arrest him. The district court denied this motion. Quiroga also filed a motion
in limine, urging the court to exclude any evidence regarding the initial plea
agreement and his withdrawn guilty plea. Quiroga relied on Federal Rule of Evidence
410, which makes inadmissible certain pleas, plea discussions, and related statements.
The district court denied the motion on the ground that Quiroga had waived his rights
under Rule 410 in the original plea agreement.

       Quiroga then entered a conditional guilty plea, which the district court accepted.
The district court found that Quiroga was subject to the career offender guideline and
sentenced him to 292 months’ imprisonment, at the bottom of the advisory guideline
range.

                                           II.

       Quiroga first challenges the denial of his motion to suppress the currency found
on his person when he was arrested, on the ground that the officers lacked probable
cause to arrest him. We review de novo the district court’s conclusion that there was
probable cause to arrest, and the underlying factual determinations for clear error.
Ornelas v. United States, 517 U.S. 690, 699 (1996). “An officer has probable cause
to make a warrantless arrest when the facts and circumstances are sufficient to lead
a reasonable person to believe that the defendant has committed or is committing an
offense.” United States v. Torres-Lona, 491 F.3d 750, 755 (8th Cir. 2007). We
consider “the totality of the circumstances as set forth in the information available to



                                          -4-
the officers at the time of arrest.” United States v. Kelly, 329 F.3d 624, 628 (8th Cir.
2003).

       We conclude that the officers had probable cause to arrest Quiroga. When the
officers arrived at the apartment, they saw Quiroga running in the vicinity where the
officers later found the drugs. A neighbor told the officers that Quiroga had dropped
a bag in that same area. This evidence, together with Quiroga’s suspicious return to
the scene a short time later from a heavily wooded area behind the apartment, is
sufficient to lead a reasonably prudent person to believe that the bag containing
methamphetamine was Quiroga’s. Quiroga claims that he returned to the apartment
from the rear in order to avoid a confrontation with his girlfriend, but reasonable
officers were entitled to draw a different inference. Accordingly, we conclude there
was probable cause for the arrest, and the district court correctly denied the motion to
suppress.

                                          III.

        Quiroga next argues that the district court erroneously denied his motion in
limine to exclude evidence relating to his previously withdrawn plea agreement. The
plea agreement included a stipulation of facts that acknowledged Quiroga’s knowing
possession of the bag containing methamphetamine and his intent to distribute some
or all of the drugs to another person. Quiroga contends that Federal Rule of Evidence
410 makes this evidence inadmissible.

      Under Rule 410, statements made in the course of plea negotiations are
inadmissible against the defendant. This right of the defendant, however, is waivable
by agreement, unless there is “some affirmative indication that the agreement was
entered into unknowingly or involuntarily.” United States v. Young, 223 F.3d 905,
909-10 (8th Cir. 2000) (quoting United States v. Mezzanatto, 513 U.S. 196, 210
(1995)). Quiroga’s original plea agreement contained a provision stating:

                                          -5-
      If the defendant violates any term or condition of this plea agreement, in
      any respect, the entire agreement will be deemed to have been breached
      . . . . If the defendant does breach this agreement, he faces the following
      consequences: (1) all testimony and other information he has provided
      at any time to attorneys, employees or law enforcement officers of the
      government, to the court, or to the federal grand jury, may and will be
      used against him in any prosecution or proceeding . . . .

(App. 5-6) (boldface in original; italicization added). The parties agree that the
italicized language, if enforceable, constitutes a waiver of Quiroga’s rights under Rule
410.

      One term of the plea agreement was that Quiroga would plead guilty to the
indictment. (App. 1). The district court concluded that Quiroga breached this term
when he moved to withdraw his guilty plea, and Quiroga does not dispute this point.2
Quiroga contends, however, that because his attorney gave incorrect advice that he
would not be classified as a career offender under the advisory guidelines, he did not
knowingly and voluntarily enter into the plea agreement or execute the waiver
contained within the agreement. Whether Quiroga knowingly and voluntarily waived



      2
        The district court reasoned that it was “constrained” to reach this conclusion
by an “apparent assumption” of this court in United States v. Swick, 262 F.3d 684 (8th
Cir. 2001), that “moving to withdraw a guilty plea is a breach of a plea agreement.”
United States v. Marcos-Quiroga, No. CR 06-3009-MWB, 2007 WL 1724898, at *9
n.3 (N.D. Iowa June 12, 2007). Whether the district court was in fact so constrained
is debatable, given that the opinion in Swick, 262 F.3d at 686-87, addressed only
whether the defendant’s waiver of rights under Rule 410 was knowing and voluntary.
See Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir. 1985)
(“[U]nstated assumptions on non-litigated issues are not precedential holdings binding
future decisions.”); cf. United States v. Newbert, 504 F.3d 180, 185-88 (1st Cir. 2008)
(addressing whether a motion to withdraw a guilty plea breached a plea agreement
worded differently than the agreement in this case); id. at 188-89 (Boudin, C.J.,
concurring). As noted, however, Quiroga does not raise this point on appeal.

                                          -6-
rights in his plea agreement is a legal question that we review de novo. Swick, 262
F.3d at 686; Young, 223 F.3d at 909.

       Quiroga’s argument, in summary, is that his attorney advised him incorrectly
that he would not be subject to the career offender guideline, that Quiroga relied on
this advice in signing the plea agreement that contained the waiver, and that his
agreement to waive rights under Rule 410 was therefore not knowing and voluntary.
This contention founders on abundant circuit precedent holding that inaccurate advice
of counsel about the sentencing guidelines or likely punishment does not render
involuntary a defendant’s decision to plead guilty, so long as the defendant is
informed of the maximum possible sentence permitted by statute and the court’s
ability to sentence within that range. In United States v. Granados, 168 F.3d 343 (8th
Cir. 1999) (per curiam), for example, this court stated that “a defendant’s reliance on
an attorney’s mistaken impression about the length of sentence is insufficient to render
a plea involuntary as long as the court informed the defendant of his maximum
possible sentence.” Id. at 345. Several other decisions are to the same effect. United
States v. Gomez, 326 F.3d 971, 975 (8th Cir. 2003) (rejecting a defendant’s contention
that a guilty plea was not “knowing and voluntary” where counsel did not advise him
that he would be sentenced as a career offender, because, inter alia, “the sentencing
stipulations in the plea agreement were clearly stated to be non-binding on the
sentencing court”); United States v. Spears, 235 F.3d 1150, 1152 (8th Cir. 2001)
(holding that a defendant’s guilty plea was “knowing and voluntary,” despite “any
confusion about how he would fare under the Sentencing Guidelines”); United States
v. Bond, 135 F.3d 1247, 1248 (8th Cir. 1998) (per curiam) (“A defense counsel’s
erroneous estimate of a guidelines sentence does not render an otherwise voluntary
plea involuntary.”); Roberson v. United States, 901 F.2d 1475, 1478 (8th Cir. 1990)
(holding that a defendant’s reliance on defense counsel’s erroneous prediction that he
would receive a more lenient sentence if he pled guilty did not make his plea
involuntary, where the defendant was fully informed of the maximum sentence on
each count); Hollis v. United States, 687 F.2d 257, 260 (8th Cir. 1982) (rejecting a

                                          -7-
defendant’s claim that his plea was involuntary, as “[t]he rule is clear that a defendant
cannot set aside a guilty plea merely because he relied on his attorney’s opinion that
the sentence would be a lenient one”); see also United States v. Silva, 430 F.3d 1096,
1100 (10th Cir. 2005) (rejecting a defendant’s contention that his guilty plea was
involuntary and unknowing due to his attorney’s erroneous advice about the likely
sentencing range under the guidelines, because the defendant “expressly indicated he
was fully aware that the prosecution had declined to agree that a specific sentence was
the appropriate disposition in his case, and that he faced a maximum term of twenty
years imprisonment at sentencing”). That the sentencing guidelines are now merely
advisory, and thus less likely to determine the ultimate sentence than when they were
mandatory, only strengthens the force of these precedents. If a guilty plea is knowing
and voluntary notwithstanding counsel’s erroneous advice about the sentencing
guidelines, we see no reason why a waiver of rights in a plea agreement would not
also be knowing and voluntary despite such mistaken guidance.

       The plea agreement signed by Quiroga specified the statutory penalties for the
offense to which he agreed to plead guilty: a term of imprisonment of at least ten
years and up to life without the possibility of parole, a fine of $8 million, or both; a
special assessment of $100; and a period of supervised release of at least eight years
and up to life. (App. 1). The agreement further provided that while “the parties may
have discussed how various factors could impact the court’s sentencing decision and
the determination of the advisory sentencing guidelines range,” the parties agreed that
“discussions did not result in any express or implied promise or guarantee concerning
the actual sentence to be imposed by the court.” (App. 3). The agreement also said
that the defendant “understands that he will have no right to withdraw his guilty plea
if the sentence imposed is other than he hoped for or anticipated.” (Id.). Quiroga
signed the agreement and initialed each paragraph to indicate his understanding.
These admonitions were sufficient to advise Quiroga that his plea agreement and the
contemplated guilty plea could result in a sentence ranging up to the statutory
maximum term of life imprisonment.               Under our precedents, Quiroga’s

                                          -8-
misunderstanding about the application of the career offender guideline did not render
the plea agreement and its waiver of rights under Rule 410 unknowing or involuntary.

       In support of his contention that the waiver of rights under Rule 410 was not
knowing and voluntary, Quiroga relies on the district court’s prior decision to grant
his motion to withdraw the guilty plea. The district court’s opinion on that matter
concluded that Quiroga received ineffective assistance of counsel in connection with
the plea, and stated that inaccurate advice about the impact of criminal history “may
render a guilty plea neither knowing nor voluntary.” Marcos-Quiroga, 478 F. Supp.
2d at 1136. In its ruling on the motion in limine, the district court amplified its view
that counsel’s erroneous advice about the sentencing guidelines “infected the
knowingness and voluntariness” of Quiroga’s guilty plea. Marcos-Quiroga, 2007 WL
1724898, at *9.

       Quiroga argues that the rationale of the district court’s decision allowing him
to withdraw his guilty plea is inconsistent with the district court’s ruling on the motion
in limine, because if counsel’s bad advice rendered his guilty plea unknowing and
involuntary, then it also rendered his decision to enter into the antecedent plea
agreement (and the attendant Rule 410 waiver) unknowing and involuntary.3 It makes

      3
       The district court explained its decision on the motion in limine as follows:

      The court cannot find that there is any real question as to whether
      Marcos-Quiroga’s waiver of the protections of Rule 410 in his plea
      agreement was knowing and voluntary or that he later breached that plea
      agreement by withdrawing his guilty plea. In allowing Marcos-Quiroga
      to withdraw his guilty plea, the court found that his guilty plea was not
      “knowing” or “voluntary” only to the extent that he was not provided by
      counsel with a realistic understanding of the relative risks of pleading
      guilty or going to trial, where counsel failed to advise him correctly
      about his exposure to a sentencing enhancement as a career criminal.
      The court did not find or suggest that counsel’s advice concerning the
      effect of provisions of the plea agreement, such as the waiver of Rule

                                           -9-
no sense, Quiroga submits, to conclude that while he unknowingly and involuntarily
agreed to plead guilty based on mistaken advice about sentencing, he also knowingly
and voluntarily agreed at the same time to a Rule 410 waiver that would effectively
preclude him from proceeding to trial if he later realized that his plea was unknowing
and involuntary. Cf. Chesney v. United States, 367 F.3d 1055, 1058-59 (8th Cir.
2004). Be that as it may, we are not bound to reconcile the district court’s orders. The
order granting Quiroga’s motion to withdraw his guilty plea was an interlocutory step
in the proceedings that was not appealable by the government. United States v.
Martin, 611 F.2d 260, 261 (9th Cir. 1979); United States v. Shapiro, 222 F.2d 836,
838 (7th Cir. 1955); 15B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 3919.7, at 713 & n.12 (2d ed. 1991). As such, it
did not become law of the case that must conform to a holding that Quiroga’s waiver
of rights in the plea agreement was knowing and voluntary. See Murr Plumbing, Inc.
v. Scherer Bros. Fin. Servs. Co., 48 F.3d 1066, 1070 (8th Cir. 1995); 18B Wright,
Miller & Cooper, supra, § 4478.6, at 829. For the reasons stated, we conclude that
Quiroga’s waiver of his rights under Rule 410 was knowing and voluntary, and that
the district court properly denied the motion in limine to exclude statements made by
Quiroga in the plea agreement.




      410 rights, resulted in a plea that was not knowing or voluntary. . . . To
      put it another way, the court cannot find that prior counsel’s error, which
      infected the knowingness and voluntariness of Marcos-Quiroga’s guilty
      plea, also infected the knowingness and voluntariness of Marcos-
      Quiroga’s waiver of Rule 410 rights under the plea agreement.

Marcos-Quiroga, 2007 WL 1724898, at *9 (citations omitted).

                                         -10-
                                         IV.

       Quiroga raises two challenges to his sentence. First, he contends that the
district court erred by classifying him as a career offender under USSG § 4B1.1,
because he had not sustained two prior felony convictions for a crime of violence or
controlled substance offense. Specifically, he contends that his conviction for assault
with intent to commit sexual abuse under Iowa Code § 709.11 should not have been
counted as a felony crime of violence. He notes that the offense is an aggravated
misdemeanor under Iowa law, and asserts that the victim of the assault suffered no
injury.

      In considering whether Quiroga’s prior assault conviction was a qualifying
felony conviction under § 4B1.2, the district court reasoned as follows:

      Pursuant to Iowa Code § 709.11, any person who commits an assault
      with intent to commit sexual abuse, but no injury results, is guilty of an
      aggravated misdemeanor. Pursuant to Iowa Code § 903.1(2), a person
      convicted of an aggravated misdemeanor for which no specific penalty
      is provided faces a maximum penalty of imprisonment not to exceed two
      years. Thus, this offense qualified as a “felony” under the guidelines.
      Moreover, the application notes to U.S.S.G. § 4B1.2 expressly state that,
      for purposes of the career offender guideline, “crime of violence”
      includes, inter alia, aggravated assault and forcible sex offenses.
      U.S.S.G. § 4B1.2, n.1. Thus, there is no doubt that Marcos-Quiroga’s
      prior conviction for assault with intent to commit sexual abuse, albeit
      designated a misdemeanor under Iowa law, is a qualifying offense for
      career offender status under § 4B1.1.

Marcos-Quiroga, 478 F. Supp. 2d at 1124. We agree with this analysis, and therefore
reject Quiroga’s challenge to the district court’s conclusion that he was a career
offender.



                                         -11-
       Quiroga also asserts that the district court impermissibly “double-counted” his
prior Iowa conviction for delivery of a controlled substance, because the conviction
served to increase the statutory penalties for the instant offense, pursuant to 21 U.S.C.
§§ 841(b) and 851, and also to classify him as a career offender pursuant to USSG
§ 4B1.1. Several courts have rejected comparable contentions, on the view that
double enhancement is not forbidden by the Constitution as long as it is intended by
the Legislature, and, in any event, there is no double enhancement where the
sentencing guidelines merely establish a range of punishment within the range of
penalties authorized by statute. United States v. Moralez, 964 F.2d 677, 682-83 (7th
Cir. 1992); United States v. Amis, 926 F.2d 328, 330 (3d Cir. 1991); United States v.
Sanchez-Lopez, 879 F.2d 541, 559 (9th Cir. 1989).

       Quiroga seeks to distinguish these cases by relying on recent Sixth Amendment
jurisprudence, including the decision in Cunningham v. California, 549 U.S. 270
(2007). There, in a case involving California’s sentencing system, the Court stated
that “[a] fact underlying an enhancement cannot do double duty; it cannot be used to
impose an upper term sentence and, on top of that, an enhanced term.” Id. at 281.
The text at issue, however, was a description of the California Penal Code; the
statement was even followed by a citation to Penal Code § 1170(b). Id. The passage
cited by Quiroga did not purport to establish a constitutional requirement. Now that
the federal sentencing guidelines are advisory, factual findings by the district court
that increase the advisory offense level do not violate the Sixth Amendment. United
States v. Brave Thunder, 445 F.3d 1062, 1065 (8th Cir. 2006). In this case, moreover,
the enhancements were based on findings about Quiroga’s prior convictions, and thus
did not implicate the Sixth Amendment. Almendarez-Torres v. United States, 523
U.S. 224, 239-47 (1998). For these reasons, we discern no legal error in the district
court’s imposition of sentence.

                                   *       *       *



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The judgment of the district court is affirmed.
               ______________________________




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