                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 08-5076


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DARRYL HANDBERRY,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
Chief District Judge. (4:08-cr-00009-FL-1)


Submitted:   February 26, 2010             Decided:   March 19, 2010


Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
Raleigh, North Carolina, for Appellant.   George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Darryl     Handberry         pled    guilty         to    making       false

statements, in violation of 18 U.S.C. § 924(a)(1)(A) (2006), and

possession and receipt of an unregistered firearm, in violation

of 26 U.S.C. §§ 5841, 5861(d), and 5871 (2006), while reserving

the   right    to     appeal     the     denial   of   his       motion      to    suppress

evidence seized from his residence.                 On appeal, Handberry argues

that the district court erred in denying his motion to suppress

and   also    contends        that   the   district       court    clearly        erred   in

imposing a four-level enhancement for use and possession of a

weapon during another felony under U.S. Sentencing Guidelines

Manual       (“USSG”)     § 2K2.1(b)(6)           (2007)     of        the    Sentencing

Guidelines.        For the following reasons, we affirm.



                                            I.

              In     spring      2007,     the     Beaufort        County         Sheriff’s

Department was contacted by a cooperating witness (“CW”), who

informed the Department that he was able to buy cocaine and

marijuana from a black male known as “D.”                           On March 27, CW

contacted “D,” who was later identified as David Pierre, and

agreed   to        purchase     cocaine    from     him     at    the     Clifton     Park

Apartments.         Later that day, CW purchased marijuana and cocaine

from Pierre and another, unidentified black male driving a green

Jeep.    Two days later, CW again contacted Pierre and ordered an

                                            2
“eight ball” of powder cocaine; Pierre told CW to meet him on

Bonner Street near 11th Street, and the transaction occurred

without incident.     Next, on April 2, 2007, CW ordered half of an

ounce of powder cocaine from Pierre, who again instructed CW to

meet him on Bonner Street near 11th Street.

            Finally, on April 9, CW called Pierre around 4:30 p.m.

to order three-quarters of an ounce of powder cocaine.                          Pierre

instructed CW to meet him at the Clifton Park Apartments.                             By

this time, the Sheriff’s Department was operating surveillance

at 1124 Bonner Street, where they believed Pierre was residing.

On that day, deputies witnessed Pierre exit the residence and

enter a car driven by a white female, identified later as Megan

Midyette.      Pierre arrived at the Clifton Park Apartments at 5:05

p.m. and completed the transaction with CW, at which point both

Pierre   and    Midyette    were    detained        by    deputies.         Pierre   was

arrested and charged with several drug offenses, and Midyette

was   transported    back    to    the    Sheriff’s         Department      after    she

offered to cooperate with the investigators.                      At the Department,

Midyette told one of the arresting officers that she was at 1124

Bonner Street to purchase marijuana from Pierre and did not know

that Pierre was selling cocaine.

            While   Midyette       and    Pierre         were   in   transit,    other

deputies, led by Lieutenant Russell Davenport, returned to 1124

Bonner   Street,    arriving      there       at   5:10    p.m.      When    Davenport

                                          3
approached the house, he heard loud music and knocked on the

door without announcing his identity.                       Receiving no response,

Davenport turned an unlocked doorknob and entered the house.

Upon entering, Davenport noticed a strong smell of marijuana.

Davenport      and    the    other     deputies     moved       into    the   house,    guns

raised, and shouted that any individuals in the home should lie

down on the floor.            The deputies detained two residents, Darryl

Handberry,      the       home’s    owner,   and    another       individual,         Randall

Dentley.       When deputies pulled Handberry up to handcuff him,

they discovered he was lying on a Hi-Point pistol.                              Once inside

the home, deputies also viewed cocaine and marijuana lying on a

table in plain view.                The deputies performed a sweep of the

house    to    ensure       there     were   no    other    occupants,          and    placed

Handberry and Dentley in patrol cars.

              While deputies remained at the house, Lt. Davenport

returned      to    the    Sheriff’s       Department      to    apply     for    a   search

warrant for the house.                The search warrant affidavit described

the surveillance of 1124 Bonner Street and identified it as the

residence of Pierre, and noted the presence of the green Jeep

used    in    one    of    CW’s    buys.     The    affidavit          also   stated    that

deputies watched Pierre leave the residence that day with Megan

Midyette to travel to Clifton Park Apartments to complete a drug

transaction with CW.               The affidavit referenced Midyette’s post-

detention      statement       that    she   went    to     1124       Bonner    Street   to

                                             4
purchase marijuana but that Pierre first asked her to drive him

to   the   Clifton      Park   Apartments.           Finally,     the       affidavit

described the deputies’ securing of the residence under “exigent

circumstances.”        The affidavit stated that while securing the

premises Davenport witnessed cocaine, marijuana, digital scales,

and a Hi-Point pistol in plain view in the living room.

            The search warrant was approved at 7:00 p.m. and was

executed by Investigator Boyd.              The search eventually produced

several    items   of    evidentiary        value,    including        a    sawed-off

shotgun hidden under the couch and several handguns.                       During the

search, Handberry motioned Investigator Boyd over to the patrol

car where he was being detained and asked what was happening.

Investigator    Boyd    informed   Handberry         that   the   deputies        were

trying to ascertain what the guns were doing in the house, and

Handberry replied that he purchased the shotgun for protection

“off the street” and that the handguns recovered from the house

were not his.      At the time of this conversation, Handberry had

not been read his Miranda * rights.

            Based upon these events, a federal grand jury sitting

in the Eastern District of North Carolina returned an eight-

count indictment against Handberry and Pierre.                    The indictment

charged    Handberry    and    Pierre   with    conspiracy        to       make   false


     *
         Miranda v. Arizona, 384 U.S. 436 (1966).


                                        5
statements       in        connection           with     a    firearms        transaction,      in

violation      of     18    U.S.C.        § 371    (2006)       (Count       One),    and   making

false    statements,            in     violation         of    18    U.S.C.     § 924(a)(1)(A)

(Count Two), and charged Handberry with possession and receipt

of an unregistered firearm—the sawed-off shotgun recovered from

the search—in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871

(Count    Three).           The      five   remaining          charges       referred    only   to

Pierre.

               Handberry         filed      a    motion       to     suppress    the     evidence

seized from his home, contesting the warrantless nature of the

initial search.             During the suppression hearing, Lt. Davenport

testified that it was a common practice for drug dealers in high

crime    neighborhoods            to    communicate           with    each    other     regarding

recent drug arrests in the area.                         Davenport testified that as a

result, the target of a search is often able to destroy or move

evidence       before       a     search        warrant       is     obtained.          Davenport

explained that the arrests of Midyette and Pierre occurred in

the parking lot of an apartment complex roughly one-half mile

from    1124    Bonner          Street,     and        for    that    reason,    the    deputies

secured the house before obtaining a search warrant.                                    Davenport

also     testified         that      he     witnessed          another       individual     under

investigation for drug dealing in the parking lot at the time

Midyette and Pierre were arrested.



                                                   6
            Following this hearing, a magistrate judge issued a

written Memorandum recommending denial of the motion.                     Handberry

filed an objection to the magistrate judge’s report, but the

district    court    denied   the     motion     to   suppress.       Thereafter,

pursuant to a written plea agreement, Handberry pled guilty to

Count Two and Count Three, conditioned on his right to appeal

the denial of his motion to suppress the evidence.                  The district

court sentenced Handberry to forty-six months imprisonment and

three years of supervised release and Handberry noted a timely

appeal.



                                       II.

            On appeal, Handberry raises three issues:                 (1) whether

the district court erred in denying his motion to suppress the

firearms discovered during the search at 1124 Bonner Street; (2)

whether    the   district     court    erred     in   denying   his    motion     to

suppress   the   statements     given       to   Investigator     Boyd;    and   (3)

whether the district court clearly erred in adding a four-point

enhancement for use and possession of a weapon during another

felony under USSG § 2K2.1(b)(6) in sentencing Handberry.

                                        A.

            Handberry first argues that the district court erred

in denying his motion to suppress.               In addressing the denial of

such   a   motion,   we   review      the    district   court’s     findings      of

                                        7
historical        fact    for    clear      error,         giving     “due   weight       to

inferences drawn from those facts by resident judges and local

law enforcement officers,” and review de novo the ultimate legal

conclusion.       Ornelas v. United States, 517 U.S. 690, 699 (1996).

And,   “[b]ecause         the    district          court     denied    the   motion       to

suppress, we construe the evidence in the light most favorable

to the Government.”          United States v. Perkins, 363 F.3d 317, 320

(4th Cir. 2004).

           In denying Handberry’s motion to suppress the firearms

seized from 1124 Bonner Street, the district court found that

the deputies possessed probable cause to search the residence

and that exigent circumstances excused their failure to obtain a

warrant prior to entry.              In the alternative, the district court

found that the independent source doctrine applied because “a

sufficient     amount      of    genuinely          independent       evidence   .    .   .

supported the [search warrant] affidavit.”                            Because we agree

with the district court that the independent source doctrine

applies,     we    need    not       address       whether    exigent     circumstances

permitted the warrantless entry.

           Under the Fourth Amendment, “even when officers have

probable cause to believe that contraband is present in a home,

a   warrantless     search      of    the   home      is   unlawful     unless   exigent

circumstances exist at the time of entry.”                            United States v.

Mowatt, 513 F.3d 395, 399 (4th Cir. 2008).

                                               8
           In     Murray        v.    United       States,     the     Supreme       Court

recognized      that       “a    later,       lawful      seizure      is      genuinely

independent     of    an    earlier,        tainted    one”—and      the     independent

source doctrine applies—unless “the agents’ decision to seek the

warrant was prompted by what they had seen during the initial

entry,   or     if     information         obtained    during        that    entry     was

presented to the Magistrate and affected his decision to issue

the warrant.”        487 U.S. 533, 542 (1988) (footnote omitted).                      The

Murray   Court       specifically           applied    the     independent          source

doctrine to a case in which execution of a search warrant was

preceded by an illegal search of the same premises.                             In such

cases,   the    Court      held,     the    evidence      recovered     in    the    later

search is not admissible unless the government establishes that

“no information gained from the illegal [search] affected either

the law enforcement officers’ decision to seek a warrant or the

magistrate’s decision to grant it.”                       Id. at 540; see United

States   v.     Dessesaure,          429    F.3d   359,      369   (1st      Cir.    2005)

(similar); United States v. Herrold, 962 F.2d 1131, 1140 (3d

Cir. 1992) (similar).

           In this case, the magistrate judge and district court

both   concluded      that,     even       assuming    the    original       warrantless

search   was    improper,       the    independent        source     doctrine       applied

because a “sufficient amount of genuinely independent evidence”

supported the search warrant affidavit.                       On appeal, Handberry

                                             9
argues that, absent the information gleaned from the original

search—i.e., the marijuana, cocaine, digital scale and Hi-Point

pistol—there was insufficient evidence to support a finding of

probable cause.

            The      determination        of    whether    probable     cause   exists

depends   on     the   totality      of   the    circumstances        and   involves   a

“practical, common-sense decision whether . . . there is a fair

probability that contraband or evidence of a crime will be found

in a particular place.”              Illinois v. Gates, 462 U.S. 213, 238

(1983).     Because “probable cause is a fluid concept—turning on

the assessment of probabilities in particular factual contexts—

not readily, or even usefully, reduced to a neat set of legal

rules,” id. at 232 we “give due weight to inferences drawn from

[the] facts by . . . local law enforcement officers,” Ornelas,

517 U.S. at 699; see also United States v. Dickey-Bey, 393 F.3d

449, 453 (4th Cir. 2004) (“Under this pragmatic, common sense

approach,      we    defer   to     the   expertise       and    experience     of   law

enforcement officers at the scene.”).                  “[T]he crucial element is

not whether the target of the search is suspected of a crime,

but whether it is reasonable to believe that the items to be

seized will be found in the place to be searched.”                              United

States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993).

            On      balance,   we    agree      with   the      district    court    that

sufficient     independent        evidence       supported      the   search    warrant

                                           10
affidavit.        The Sheriff’s Department had identified 1124 Bonner

Street as Pierre’s residence and had engaged in three undercover

cocaine purchases from Pierre.             The green Jeep used to transport

Pierre to one of the purchases was located at the residence.                     On

the   day    in    question,      Pierre    left      the   residence    and   drove

directly to the Clifton Park apartments, where he completed the

sale of cocaine to CW, suggesting that his cocaine supply was

located     at    1124   Bonner    Street.       In    addition,   Midyette    told

Investigator Boyd that she went to the residence to purchase

marijuana.        These facts, all of which were obtained independent

of the initial entry and search, support a finding of probable

cause.

             In addition, ample evidence suggests that the original

search did not play a role in Lt. Davenport’s decision to seek a

warrant.     Davenport testified that he believed the 1124 Bonner

Street residence needed to be secured because of his concern

that another drug dealer would notify the residents of Pierre’s

arrest.      The original search reflected that understanding, as

Davenport    and    the    deputies    detained       Handberry    and   the   other

resident, swept the remainder of the house for individuals, and

then exited.        Other than spotting the items in plain view, no

search for contraband occurred.                 Indeed, the sawed-off shotgun

was found during the execution of the warrant and not during the

initial search.          The scope of this initial search supports the

                                           11
inference that Lt. Davenport would have applied for the search

warrant absent the evidence found in plain view.                          Therefore, the

district court did not err in denying the motion to suppress.

                                           B.

              Handberry next argues that the district court erred in

admitting his statement to Investigator Boyd that he purchased

the    sawed-off       shotgun      recovered     from      the    residence.             The

Government argues that Handberry may not challenge this ruling

on appeal by virtue of his conditional guilty plea.

              “A     voluntary    and   intelligent         plea   of     guilty     is    an

admission of all the elements of a formal criminal charge, and

constitutes an admission of all material facts alleged in the

charge.”      United States v. Willis, 992 F.2d 489, 490 (4th Cir.

1993) (internal quotation marks and citations omitted).                             “When a

defendant pleads guilty, he waives all nonjurisdictional defects

in    the    proceedings     conducted       prior     to    entry      of   the     plea.”

United      States    v.   Bundy,    392   F.3d   641,      644    (4th      Cir.    2004).

Thus, “when the judgment of conviction upon a guilty plea has

become final and the offender seeks to reopen the proceeding,

the inquiry is ordinarily confined to whether the underlying

plea was both counseled and voluntary.”                  Id.

              Based upon these considerations, “direct review of an

adverse ruling on a pretrial motion is available only if the

defendant      expressly         preserves      that     right       by      entering       a

                                           12
conditional      guilty    plea”    pursuant     to   Rule   11(a)(2).       United

States v. Wiggins, 905 F.2d 51, 52 (4th Cir. 1990).                            “This

approach comports with the general rule that conditions to a

plea are not to be implied.”             Bundy, 392 F.3d at 645 (internal

quotation marks omitted).

            Handberry unconditionally pled guilty to Count Two and

conditionally     pled     guilty   to   Count    Three.      The    written     plea

agreement contains the following language:

            The parties agree:

     a.   Pursuant to the defendant’s conditional plea of
     guilty to [] Count Three of the Indictment herein and
     pursuant to Fed. R. Crim. P. 11(a)(2), that the
     defendant reserves the right to appeal from the
     portion of the Court’s adverse decision on Defendant’s
     Motion to Suppress Evidence, filed July 7, 2008,
     denying the defendant’s motion to suppress the sawed-
     off shotgun obtained during the April 9, 2007, search
     of the defendant’s residence.

(J.A. at 206).

            During the Rule 11 colloquy, Handberry stated that he

understood the conditional guilty plea he was entering, and the

plea agreement specifically conditions the plea to Count Three

on Handberry’s right to appeal only “from the portion of the

Court’s adverse decision . . . denying the defendant’s motion to

suppress the sawed-off shotgun.”                 Nothing during the Rule 11

colloquy    suggests       that     Handberry     understood        the   provision

differently or believed that he would be able to appeal the

admission   of    his     statement.     Accordingly,        we   agree   with    the

                                         13
Government     that   Handberry    failed    to    preserve     this    issue      for

appeal.

                                       C.

           Finally,        Handberry        challenges         the     four-level

enhancement for use and possession of a weapon during another

felony under USSG § 2K2.1(b)(6).            The district court added this

enhancement after accepting the probation officer’s finding that

Handberry permitted Pierre to use one of the handguns during his

drug   trafficking    operation.       On    appeal,   Handberry       challenges

this   finding    while   the     Government      contends     that    the    appeal

waiver contained in the plea agreement bars consideration of the

issue.

           A   defendant    may    waive    the   right   to    appeal       if   that

waiver is knowing and intelligent.             United States v. Blick, 408

F.3d 162, 169 (4th Cir. 2005).          Generally, if the district court

fully questions a defendant regarding the waiver of his right to

appeal during the Rule 11 colloquy, the waiver is both valid and

enforceable.      See United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68

(4th Cir. 1991).       Whether a defendant validly waived his right

to appeal is a question of law that this court reviews de novo.

Blick, 408 F.3d at 168.         An appeal waiver does not, however, bar

the appeal of a sentence imposed in excess of the statutory

maximum or a challenge to the validity of a guilty plea.                      United

                                       14
States v. General, 278 F.3d 389, 399 n.4 (4th Cir. 2002); United

States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).

           The plea agreement contained the following appellate

waiver:

           The Defendant agrees:

     c.    To waive knowingly and expressly all rights,
     conferred by 18 U.S.C. § 3742, to appeal whatever
     sentence is imposed, including any issues that relate
     to the establishment of the advisory Guideline range,
     reserving only the right to appeal from a sentence in
     excess of the applicable advisory Guideline range that
     is established at sentencing, and further to waive all
     right to contest the conviction or sentence in any
     post-conviction proceeding . . . excepting an appeal
     or motion based upon grounds of ineffective assistance
     of counsel or prosecutorial misconduct not known to
     the Defendant at the time of the Defendant’s guilty
     plea.

(J.A. at 204).

           During    the   Rule   11   colloquy,   the   magistrate    judge

specifically      referenced   the     appeal   waiver   with     Handberry,

ensuring   that     he   understood     its   ramifications.       Handberry

stated, under oath, that he understood the appeal waiver, and

there is no suggestion that he was under the influence of drugs

or alcohol at the time of the Rule 11 colloquy.                 In addition,

Handberry had three years of college education, and his attorney

indicated that he had no difficulty communicating with him.

           On appeal, Handberry does not contest any of these

facts, and, accordingly, we agree with the Government that this

issue, which relates to Handberry’s guideline sentence and does

                                       15
not involve any of the exceptions discussed in General or Marin,

is clearly covered by the appellate waiver.



                                      III.

            For   the    foregoing    reasons,     we   affirm    Handberry’s

conviction and sentence.        We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials   before      the   court   and    argument   would    not   aid   the

decisional process.

                                                                       AFFIRMED




                                       16
