UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4264

RIOLL TANELLUS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, District Judge.
(CR-98-90-F)

Submitted: October 8, 1999

Decided: November 8, 1999

Before WILKINS, MICHAEL, and KING, Circuit Judges.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Wayne Buchanan Eads, Raleigh, North Carolina, for Appellant.
Janice McKenzie Cole, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, Kenneth F. Whitted, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Rioll Tanellus appeals the denial of his suppression motion and the
sentence arising from his conviction for violations of 18 U.S.C.
§ 1952(a) (1994), interstate travel in aid of racketeering, and 21
U.S.C. § 841(a)(1) (1994), possession with intent to distribute
cocaine. We dismiss the appeal.

Tanellus was driving in North Carolina when he was stopped by
police for a vehicle equipment violation. After he was given an oral
warning, he consented to a search of his van. On opening the door of
the van, the officers noticed the odor of laundry-dryer sheets
("Bounce"), which they testified was often used to mask the odor of
illegal drugs. After searching the interior of the vehicle, one of the
officers used a screwdriver to remove the cover of one of the rear tail
lights in order to observe the area between the interior and exterior
walls of the van's truck bed. Looking into the space, he observed
"some type of packaging." (J.A. 59). Tanellus, who had been pacing
nervously nearby, was then handcuffed and made to kneel in front of
the patrol car. As one of the officers retrieved a crowbar from the
patrol car to remove the van's rear fender, Tanellus told the officers
how to remove the rear panel of the van to reach a secret compart-
ment. After the cocaine was discovered, Tanellus was given his
Miranda1 warnings.

Tanellus was indicted on one count each of cocaine possession
with intent to distribute and interstate travel in aid of racketeering.
After an evidentiary hearing, his motion to suppress the cocaine was
denied, and he then entered a guilty plea. At sentencing, he moved for
a downward departure on the ground that, as an alien subject to
deportation, he would not be entitled to participate in certain pro-
grams in prison. This motion was denied, and he was sentenced to
eighty-seven months' imprisonment. He appeals the suppression rul-
ing and the sentence.

Tanellus pleaded guilty to the indictment without first entering into
a plea agreement and without conditioning his plea on the right to
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1 Miranda v. Arizona, 384 U.S. 436 (1966).

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appeal any pretrial rulings. The Government contends that this uncon-
ditional plea waives Tanellus's right to raise the suppression issue on
appeal. We agree.

As to conditional pleas, Rule 11(a) of the Federal Rules of Crimi-
nal Procedure provides:

          With the approval of the court and the consent of the gov-
          ernment, a defendant may enter a conditional plea of guilty
          or nolo contendere, reserving in writing the right, on appeal
          from the judgment, to review of the adverse determination
          of any specified pretrial motion. A defendant who prevails
          on appeal shall be allowed to withdraw the plea.

Tanellus did not enter such a conditional plea."[A] guilty plea consti-
tutes a waiver of all nonjurisdictional defects" in a conviction. United
States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993) (citation omitted).
Tanellus does not respond to the Government's assertion that his
guilty plea was unconditional, and we find no indication that it was
otherwise. See, e.g., United States v. Markling , 7 F.3d 1309, 1312-14
(7th Cir. 1993) (finding that, although no written plea agreement was
included in the record, a letter from the government memorializing
the conditional nature of the plea was sufficient to preserve defen-
dant's right to appeal suppression ruling); United States v. Yasak, 884
F.2d 996, 999-1000 (7th Cir. 1989) (finding conditional plea in the
transcript of guilty plea hearing). In the absence of any evidence that
Tanellus has reserved his right to appeal the legality of the search of
his van, he has waived his right to assert that issue on appeal. See
United States v. Broce, 488 U.S. 563, 569 (1989). We therefore dis-
miss the appeal as to the district court's denial of Tanellus' motion
to suppress.

At sentencing, Tanellus moved for a downward departure on the
ground that the Sentencing Guidelines did not adequately consider
certain circumstances applicable to him. See U.S. Sentencing Guide-
lines Manual § 5K2.0 (1998).2 As a deportable alien, he is ineligible
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2 Tanellus also moved for a departure on the ground that his offense
was the result of "aberrant behavior." See U.S.S.G., Ch. 1. Pt. A, 4(d),
p.s. (departure permitted for "single acts of aberrant behavior"). This
argument is meritless. As used in the Guidelines,"[a] single act of aber-
rant behavior suggests `a spontaneous and seemingly thoughtless act

                    3
for certain programs operated by the Bureau of Prisons or for assign-
ment to home confinement or community centers during the later por-
tion of his sentence. See generally United States v. Restrepo, 999 F.2d
640, 644-46 (2d Cir. 1993) (describing Bureau of Prisons regulations
regarding confinement of aliens). Tanellus also claims that his alien
status makes him ineligible for alcohol rehabilitation programs, suc-
cessful completion of which could result in a reduction of his term of
imprisonment. As a result, his sentence, both in terms of conditions
of confinement and duration, may be harsher than the same sentence
imposed on an identically situated citizen. The Government counters
that we are foreclosed from even considering the district court's deci-
sion not to depart. We agree.

At sentencing, Tanellus's counsel reminded the court that he had
filed a motion for a departure. The court responded,"I have read it.
I am going to deny that motion . . . ." (J.A. 192). Nothing more was
said on the matter. We generally do not have the authority to review
a refusal to depart unless the district court believed it was without
authority to depart at all. See United States v. Bayerle, 898 F.2d 28,
30-31 (4th Cir. 1990). The threshold question is whether the court
believed it had the legal authority to depart, regardless of whether
alienage could be a basis for departure.

A court's statements explaining a reason for the denial of a depar-
ture motion are construed in the light most favorable to the defendant.
See United States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992) (constru-
ing the court's refusal to depart as being based on the view that it
lacked authority to do so).3 In Tanellus's case, the court denied the
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rather than one which was the result of substantial planning because an
act which occurs suddenly and is not the result of a continued reflective
process is one for which the defendant may be arguably less account-
able.'" United States v. Glick, 946 F.2d 335, 339 (quoting United States
v. Carey, 895 F.2d 318, 325 (7th Cir.1990)). Tanellus's crime may have
been his first such offense, but it was not a spontaneous act; he flew to
Virginia on a ticket paid for by the cocaine distributor, drove to a house
where the drugs were loaded into the van, and then began driving to Flor-
ida.
3 Some courts hold the defendant responsible for clarifying the record.
See United States v. Studevent, 116 F.3d 1559, 1564 n.5 (D.C. Cir. 1997)
("It is the defendant's duty to elicit the reasons for refusing to grant a
downward departure . . . .").

                    4
motion without explaining its reasons. There are, then, no statements
to construe, and "[t]he court's silence regarding authority to depart is
not sufficient to indicate that the court believed it lacked power to
depart." United States v. Garcia-Garcia , 927 F.2d 489, 491 (9th Cir.
1991). Moreover, in light of recent court decisions, the possibility that
a court would misconstrue its authority to consider a departure is min-
imal.

In Koon v. United States, 518 U.S. 81 (1996), the Court provided
a detailed framework for the consideration of factors raised as
grounds for departures. For factors not specifically mentioned in the
Guidelines, Koon teaches that the factor must at least be considered.
Id. at 94-96. The factor raised by Tanellus is clearly not mentioned
in the Guidelines and, in Koon's wake, it has been recognized that
"district court[s are] . . . free to consider whether [defendant's] status
as a deportable alien has resulted in unusual or exceptional hardship
in his conditions of confinement." United States v. Farouil, 124 F.3d
838, 845-47 (7th Cir. 1997) (remanding to permit the district court to
consider a departure motion on the ground of alienage in light of
Koon); see also United States v. Charry Cubillos, 91 F.3d 1342 (9th
Cir. 1996) (recognizing that defendant's alien status may be a basis
for departure under Koon). We have no reason to believe that the dis-
trict court in the instant case categorically denied Tanellus's motion.4
Accordingly, we dismiss the appeal to the extent that it assigns as
error refusal of the district court to depart downward.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

DISMISSED
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4 A few months after Tanellus was sentenced, we noted that "[although
the Guidelines prohibit reliance on national origin[as a basis for depar-
ture], see USSG § 5H1.10, they do not mention alienage as a departure
factor; it therefore serves as a potential basis for departure." United
States v. DeBeir, ___ F.3d ___, 1999 WL 558408 (4th Cir. July 29,
1999) (No. 98-4907).

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