                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-3793
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Western
                                         * District of Missouri.
Donald William Parker,                   *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: April 12, 2005
                                 Filed: June 28, 2005
                                  ___________

Before LOKEN, Chief Judge, WOLLMAN, and BEAM, Circuit Judges.
                             ___________

BEAM, Circuit Judge.

       Donald Parker pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In that plea agreement he reserved
his right to appeal the district court's1 denial of his motion to suppress the firearms
seized during the search of his residence. This appeal followed and we affirm.



      1
      The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri, adopting the report and recommendation of The
Honorable James C. England, Magistrate Judge, United States District Court for the
Western District of Missouri.
      I.     BACKGROUND

       On September 23, 2003, local police officers went to Parker's mobile home in
Sheldon, Missouri, looking for a federal fugitive. Parker gave Sheriff Peckman
permission to enter. Peckman searched the mobile home and did not find the man
they were looking for. ATF Agent Fridley also entered the mobile home shortly after
Peckman, testifying at the suppression hearing that he first asked Parker's girlfriend
if he could enter. Upon entering, Agent Fridley observed boxes of ammunition in
plain view on a shelf. Fridley testified that at that point, he became concerned for his
safety and the safety of the other officers because they were searching for a fugitive
who had pled guilty to federal firearms violations. Fridley continued the search for
the fugitive, lifting up the mattress to the bed because "[b]ased on [his] experience of
beds in trailers, especially in the kitchen area, sometimes they're just a mattress over
a frame, a wood frame, that's covering a storage area, a possible hiding place."
Fridley found a gun under the mattress. Ultimately, Parker informed the officers of
his prior convictions and that there were, in fact, two more guns in the mobile home,
and he told the officers where they were.

        Parker's suppression motion was based, in part, on his alleged withdrawal of
consent. Parker claims that he gave consent to search for the fugitive and nothing
more. Parker further claims that at the time Fridley entered the mobile home and
began searching, Parker was outside asking a third officer if they had a search
warrant. Parker's girlfriend, on the other hand, testified that she heard Parker
question the officers about the warrant while they were in the trailer. The officers
testified that Parker never instructed them to stop searching or asked for a warrant.
In fact, the officers testified that Parker facilitated the weapons search by telling the
officers where the guns were.

      The district court, adopting the recommendation of the magistrate judge, denied
Parker's motion to suppress, and Parker reserved his right to appeal that decision in

                                          -2-
his plea agreement. The district court sentenced Parker to thirty months'
imprisonment. On appeal, Parker raises a Fourth Amendment claim in addition to
Blakely sentencing claims.

II.   DISCUSSION

      A.     Fourth Amendment

       Parker claims that although he initially gave his consent to the officers to enter
the trailer to look for the fugitive, he withdrew his consent before the officers found
the guns. And Parker claims that in any event, the weapons search exceeded the
scope of his consent. "We examine the factual findings underlying the district court's
denial of a motion to suppress for clear error and review de novo the ultimate
question of whether the Fourth Amendment has been violated." United States v.
Neumann, 183 F.3d 753, 755 (8th Cir. 1999).

        Parker and his girlfriend gave conflicting testimony at the suppression hearing
about where Parker was when he allegedly revoked his consent by asking the officers
for a search warrant. The district court rejected Parker's withdrawal-of-consent claim
because Parker and his girlfriend's credibility had been severely undermined and the
officers testified that they never heard Parker say anything about a warrant while they
were searching. Peckman testified that the first time he heard Parker ask if they had
a warrant was after the guns were retrieved, they were outside, and Parker was under
arrest. The court concluded that "the credible testimony, taken as a whole, suggests
that [Parker] did not object to the officers searching for more weapons, but rather, he
facilitated the search."

      Parker's own testimony supports the court's conclusion. Parker told the officers
where the additional weapons were located. Such assistance does not usually come
from someone who has unequivocally withdrawn his consent to search. A defendant

                                          -3-
must make an unequivocal act or statement to indicate that consent is being
withdrawn. United States v. Ross, 263 F.3d 844, 846 (8th Cir. 2001). There is no
evidence of an unequivocal withdrawal here and we have little latitude to review the
court's credibility determination. United States v. Walsh, 299 F.3d 729, 735 (8th Cir.
2002). Based on our review of the record we find no error.

       Parker further argues that there was no justification for expanding the search
because the incriminating nature of the ammunition was not immediately apparent to
these officers, who did not know Parker was a felon. Thus, he claims there was no
justification for the expansion of their search. However, the search under the mattress
was not an "expansion" nor was it based on any determination that the ammunition
in plain view was incriminating. Given Fridley's concern for everyone's safety, his
search was reasonable. Fridley was searching under the mattress for the fugitive,
known to be a convicted felon in possession of weapons, and only incidentally
discovered the first gun. The district court did not err in crediting Fridley's testimony
on this issue. Accordingly, there was no Fourth Amendment violation here.

      B.     Sentencing Issues

      Although the district court applied the then-mandatory guidelines when it
sentenced Parker, which we now know was error, we do not have a Booker issue to
address. United States v. Booker, 125 S. Ct. 738, 756 (2005). Parker expressly
waived his right to appeal the constitutionality of the guidelines in his plea
agreement, admitted to the conviction at the time of his plea, and stipulated to the
guidelines' calculations used by the district court. Paragraph eight of Parker's plea
agreement states that "[t]he defendant agrees not to appeal or otherwise challenge the
constitutionality or legality of the Sentencing Guidelines" and "[t]he defendant
understands and acknowledges that his sentence will be determined and imposed
pursuant to those Sentencing Guidelines."



                                          -4-
       Valid waivers of appellate rights are generally enforceable and must be entered
into knowingly and voluntarily. United States v. Andis, 333 F.3d 886, 889-90 (8th
Cir.), cert. denied, 540 U.S. 997 (2003). The right to appellate relief under Booker
is among the rights waived by a valid appeal waiver. United States v. Reeves, No.
04-2356, 2005 WL 1366432, at *2 (8th Cir. June 10, 2005); United States v. Burns,
No. 04-4115, 2005 WL 1366430, at *2 (8th Cir. June 10, 2005). Nothing before us
gives us pause to question the validity of this waiver. Parker does not dispute that he
entered into the plea agreement and waiver knowingly and voluntarily. Accordingly,
Parker's challenge to the constitutionality of the guidelines is foreclosed.

III.   CONCLUSION

       For the reasons stated herein, we affirm.
                       ______________________________




                                         -5-
