                                                                                       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                               NOT FOR PUBLICATION                                      DEC 20 2010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



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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.




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                                                                            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.




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