                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-1505
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Claude E. Hyler,                         *
                                         *      [UNPUBLISHED]
      Defendant - Appellant.             *
                                    ___________

                               Submitted: September 11, 2003

                                   Filed: September 17, 2003
                                    ___________

Before LOKEN, Chief Judge, HEANEY and HANSEN, Circuit Judges.
                              ___________

PER CURIAM.

      After a warrant search of his Kansas City residence yielded two 9mm
handguns, ammunition, cocaine, marijuana, electronic scales, and cash, a federal
grand jury charged Claude E. Hyler with four drug trafficking and firearms offenses.
When the district court1 denied his motion to suppress evidence seized during the


      1
        The HONORABLE FERNANDO J. GAITAN, JR., United States District
Judge for the Western District of Missouri, adopting the Report and Recommendation
of the HONORABLE SARAH W. HAYS, United States Magistrate Judge for the
Western District of Missouri.
search, Hyler entered into a written, unconditional plea agreement and pleaded guilty
to being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). The plea
agreement tentatively resolved certain sentencing issues but left open the question
whether Hyler had one or two prior convictions involving crimes of violence for
sentencing purposes. Three days before sentencing, Hyler moved for a continuance
on the ground that he needed time to investigate the search warrant procedures of the
Kansas City Police Department. The district court denied the motion and sentenced
Hyler to 100 months in prison. He now appeals, arguing the court erred in denying
the pre-plea motion to suppress and the pre-sentencing motion for a continuance, and
in determining that he had two prior convictions for crimes of violence. Concluding
that Hyler’s plea agreement and guilty plea waived these issues, we affirm.

       Hyler first argues that the district court erred in denying his motion to suppress
and his subsequent motion for a continuance so that he could further explore
suppression issues. It is well-settled that “[a] defendant’s knowing and intelligent
guilty plea forecloses independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea.” United States v. Vaughan,
13 F.3d 1186, 1187 (8th Cir.) (quotation omitted), cert. denied, 511 U.S. 1094 (1994).
Thus, a guilty plea waives the prior denial of a Fourth Amendment suppression
motion unless the government and the court have agreed to permit the defendant to
enter a conditional guilty plea that preserves the issue for appeal. See FED. R. CRIM
P. 11(a)(2); United States v. Arrellano, 213 F.3d 427, 430 (8th Cir. 2000). Here,
Hyler entered an unconditional guilty plea, and the district court before accepting the
plea engaged in a colloquy demonstrating that Hyler was knowingly and voluntarily
giving up his right to appeal and pleading guilty. Thus, the issues raised in his
suppression motion were waived, and the district court did not abuse its discretion in
denying his motion for a continuance to pursue those issues. See United States v.
Ulrich, 953 F.2d 1082, 1085 (8th Cir. 1991) (standard of review).




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       Hyler next argues the district court erred in determining that two of his prior
convictions were crimes of violence for purposes of sections 2K2.1(a)(2)
and 4B1.2(a) of the Sentencing Guidelines. This issue, too, was waived by his guilty
plea. The plea agreement provided that Hyler “expressly waives the right to appeal
his sentence, directly or collaterally, on any ground except for an upward departure
by the sentencing judge, a sentence in excess of the statutory maximum, or a sentence
in violation of law apart from the Sentencing Guidelines.” In this circuit, a
defendant’s waiver of his right to appeal sentencing issues is enforceable if the plea
agreement was knowing and voluntary and the waiver will not result in a “miscarriage
of justice.” United States v. Andis, 333 F.3d 886, 889-90 (8th Cir. 2003) (en banc).
The transcript of the change-of-plea hearing demonstrates that Hyler’s guilty plea and
sentencing appeal waiver were knowing and voluntary; indeed, he does not argue to
the contrary. And “an allegation that the sentencing judge misapplied the Sentencing
Guidelines or abused his or her discretion is not subject to appeal” under the
miscarriage of justice exception. Andis, 333 F.3d at 892.

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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