                                                               [Do Not Publish]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________
                                                               FILED
                                No. 04-10783         U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                         ________________________         December 6, 2005
                                                        THOMAS K. KAHN
                D. C.   Docket No. 02-00011-CR-001-CAR-7      CLERK



UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,

                                   versus

KENNETH JOHN PACHINGER,
                                               Defendant-Appellant.


                         ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                     _________________________
                            (December 6, 2005)


                   ON REMAND FROM THE
             SUPREME COURT OF THE UNITED STATES


Before BIRCH, BARKETT and FAY, Circuit Judges.


PER CURIAM:
       In an opinion filed January 3, 2005, we affirmed the rulings of the district

court which denied appellant’s motion to suppress and sentenced him to 145

months in prison. Pachinger then filed a petition for writ of certiorari with the

Supreme Court of the United States. The Court granted the petition, vacated our

judgment, and remanded the case for further consideration in light of United States

v. Booker, 543 U.S.           , 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). After such

reconsideration, we reinstate our prior opinion which held that the district court

did not err in denying Pachinger’s motion to suppress, and that Pachinger

voluntarily entered into a valid appeal waiver to challenge his sentence.1



                                     I. Factual Background

       Kenneth John Pachinger was convicted and sentenced to 145 months for

distribution of cocaine, heroin, and marihuana to a person under 21 years of age,

in violation of 21 U.S.C. §§ 841(a)(1), 859(a) (hereafter referred to as “Count 2"),

and sexual exploitation of a child, in violation of 18 U.S.C. § 2251(a) (hereafter

referred to as “Count 3"). Pachinger pled guilty to both counts 2 and 3; and, in

addition, he expressly agreed in his plea agreement that he was waiving his right



       1
         In reinstating our earlier opinion, under Issue 2: Sentencing, we reinstate only the first
three paragraphs dealing with the sentence imposed and the waiver of appeal.

                                                 -2-
to appeal his sentence. After Pachinger pled guilty to the above-mentioned

violations, the district court increased his base offense level for count 3 by two

levels, pursuant to U.S.S.G. § 2G2.1(b)(2). This increase was based upon the

court’s determination that the offense involved a victim who was a minor, within

defendant’s custody, care, or supervisory control. The court also increased his base

offense by two more levels, pursuant to U.S.S.G. § 3C1.1, for obstruction of

justice. Pachinger argues that the district court (1) erred in denying his motion to

suppress evidence, and (2) violated his Sixth Amendment right to a jury trial by

enhancing his guideline offense level based on facts that neither were charged in

his indictment nor proven to a jury beyond a reasonable doubt, in light of Blakely

v. Washington, 542 U.S.           , 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and United

States v. Booker, 543 U.S.           , 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).



                                   III. Motion to Suppress

      With regards to Pachinger’s motion to suppress evidence seized at the time

of his arrest, we reinstate our prior holding that the initial warrantless search of

Pachinger’s hotel room was justified as a search incident to exigent

circumstances.2

      2
          United States v. Booker has no relevance to our holding on the motion to suppress.

                                               -3-
                                   IV. Sentencing

      Pachinger contends that in light of Booker his sentence is unconstitutional

for the following reasons: (1) that the district court erred in sentencing him based

on facts that were neither charged in his indictment nor found by a jury beyond a

reasonable doubt; and (2) that his appeal waiver was predicated on the belief that

the Federal Sentencing Guidelines were constitutional. We find both of these

arguments to be non-persuasive.

      Pachinger relies on Blakely and Booker, arguing that the Supreme Court

held that the imposition, based solely on the sentencing judge’s factual findings of

a sentence enhancement, violated the defendant’s Sixth Amendment rights

because the facts supporting the findings neither were admitted by the defendant,

nor found by a jury. See Blakely,124 S.Ct. at 2534-38 and Booker, 125 S.Ct at

755-56.

      Pachinger contends that the district court erred when increasing his base

offense level for Count 3 by two levels. He asserts his indictment did not include

that the victim in Count 3 was a minor in his custody, care, or supervisory control.

In addition, Pachinger contends that the district court erred by increasing his base

offense level by two more levels for obstruction of justice. He argues that his

                                         -4-
indictment did not include the fact that he obstructed justice by not appearing in

court for his change-of-plea hearing.

       Contrary to these assertions, a review of the record shows that Pachinger

admitted that the minor was staying with him at his motel, and during his

sentencing hearing he admitted that he failed to appear for his change-of-plea

hearing.3 Therefore, it is clear that there was an admitted basis for the district court

to make such enhancements.

       In addition, Pachinger seems to argue that the government failed to

articulate a sufficient factual basis for the quantity of drugs seized in Count 2.

However, on February 5, 2004, in open court, Pachinger and his attorney

stipulated to the quantity of illegal drugs that were involved in this case.4



Appeal Waiver

       The record reflects that Pachinger expressly agreed in his plea agreement

that he was waiving his right to appeal his sentence, except: (1) to challenge an

upward departure, (2) to raise a claim of ineffective assistance of counsel, (3) to


       3
           Page 6, Line 1-6 of the Sentencing Hearing.
       4
        According to the transcript of the sentencing hearing, the parties stipulated that the
amount of illegal drugs involved in this case was more than 100 grams but less than 200 grams of
cocaine. Page 8, Line 11-13.

                                                -5-
appeal the court’s denial of his suppression motion, or (4) in the event that the

government filed an appeal of his sentence. Such a waiver will be enforced if the

government demonstrates either: “(1) the district court specifically questioned the

defendant about the waiver during the plea colloquy, or (2) the record clearly

shows that the defendant otherwise understood the full significance of the waiver.”

Benitez-Zapata, 131 F.3d 1444 at 1446.

      During Pachinger’s change-of-plea hearing, the magistrate carefully

confirmed that he understood the full ramifications of waiving his appeal rights.

The record confirms that Pachinger’s appeal waiver was entered into knowingly

and voluntarily.

      Lastly, Pachinger argues that because the Federal Sentencing Guidelines

were constitutional at the time he executed his appeal waiver but have now been

held unconstitutional, he should be able to rescind that waiver. However, because

this argument is clearly outside the listed exceptions to the appeal waiver, it is

waived. See United States v. Brown, 415 F.3d 1257,1272-73 (11th Cir.2005).




                                          -6-
                                  V. Conclusion

      After reconsideration of this matter in light of Booker, we conclude there

was no error in the denial of appellant’s motion to suppress and that he knowingly

and voluntarily waived the right to appeal his other contentions.

      OPINION REINSTATED. CONVICTIONS AND SENTENCES AFFIRMED.




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