                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-4135
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota
Indalecio Arrellano,                     *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: May 9, 2000

                                   Filed: May 23, 2000
                                    ___________

Before McMILLIAN, JOHN R. GIBSON and BEAM, Circuit Judges.
                            ___________

McMILLIAN, Circuit Judge.

       Indalecio Arellano appeals from a final judgment entered in the District Court1
for the District of Minnesota finding him guilty, pursuant to a written plea agreement,
of aiding and abetting possession with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2, and possession of an
unregistered destructive device, in violation of 26 U.S.C. §§ 5845(f), 5861(d). The
district court sentenced him to a total of 121 months imprisonment, 5 years supervised

      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
release, and a special assessment of $200.00. For reversal, defendant argues on the
merits that the district court erred in denying his motion to suppress evidence obtained
as a result of an unlawful search of his apartment. He also argues that the good faith
exception does not apply. For the reasons discussed below, we affirm the judgment of
the district court.

       The district court had original federal criminal jurisdiction over this matter
pursuant to 18 U.S.C. § 3231; this court has appellate jurisdiction over the final
decision of the district court pursuant to 28 U.S.C. § 1291. The notice of appeal was
timely filed pursuant to Fed. R. App. P. 4(b).

       In October 1998 a federal grand jury charged defendant and his niece, Aurora
Melgarejo-Arellano, with conspiracy to distribute and possess with intent to distribute
methamphetamine, possession with intent to distribute methamphetamine, and
possession of a destructive device. Each defendant filed motions to suppress evidence
(the niece also filed motions to sever counts and defendants). After a hearing, the
magistrate judge2 recommended that the motions to suppress be denied (as well as the
motions to sever). The magistrate judge found that the search warrant for defendant’s
apartment was not supported by probable cause but that the United States v. Leon3
exception applied because the executing officers had relied in objective good faith on
a facially valid warrant. Defendant filed objections to the recommendation that the
motion to suppress be denied. The district court conducted a de novo review, adopted
the magistrate judge’s report and recommendation, and denied the motion to suppress.




      2
      The Honorable Arthur J. Boylan, United States Magistrate Judge for the District
of Minnesota.
      3
          468 U.S. 897 (1984).

                                          -2-
       On April 6, 1999, the day that trial was scheduled to begin, defendant entered
a guilty plea to the possession with intent to distribute methamphetamine charge (count
II) and the possession of a destructive device charge (count III), pursuant to a written
plea agreement. The plea agreement did not preserve any right to appeal pretrial
motions pursuant to Fed. R. Crim. P. 11(a)(2).4 The plea agreement contained a waiver
of defendant’s right to appeal his sentence, so long as it was within the guideline
sentencing range contemplated by the parties, that is, below 188 months. At the guilty
plea hearing, in the context of discussing the sentencing waiver, the following exchange
occurred between the district court and defense counsel:

      THE COURT: [Counsel], have you reviewed the appellate rights issue
      with your client, and are you satisfied that this waiver is appropriate in
      this case?

      [DEFENSE COUNSEL]: Your honor, I have reviewed the appellate
      rights with my client . . . and both on the sentencing and also more
      specifically about an issue that I discussed with the U.S. Attorney as well.
      More specifically, [defendant] had a question about preserving his right
      to appeal the suppression motion. I’ve offered that as a negotiation, to try
      to have the U.S. Attorney preserve that issue for appeal

             I have indicated to [defendant] that the government is unwilling to
      preserve the issue for appeal. And as a consequence, that he waives his
      right to appeal the suppression by pleading guilty today.



      4
          Fed. R. Crim. P. 11(a)(2) provides:

             Conditional Pleas. With the approval of the court and the consent
      of the government, 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.

                                           -3-
             So in answer to Your Honor's question, yes, I have reviewed both
      the sentencing appellate rights and the issue that was raised by way of a
      pretrial motion as well, and I’m satisfied that [defendant] understands
      both waivers, and that he’s willing to forge ahead, Your Honor.

      THE COURT: And in light of the agreement being reached, it’s in his
      best interests, in your view, to waive the appellate rights?

      [DEFENSE COUNSEL]: It is, Your Honor.


Guilty plea transcript at 14-15.

       And later the district court and defendant had the following discussion about the
guilty plea and the waiver of defendant’s right to appeal the pretrial rulings:

      THE COURT: A matter that you and [defense counsel] have talked
      about, you also do have the right to challenge the evidence that the
      government has and is prepared to use against you. Typically that’s done
      before trial on a motion to suppress evidence. When you plead guilty,
      however, you’re giving up forever your right to challenge the evidence,
      and you’re in effect agreeing that the government can use that evidence
      against you.

            Now, do you understand, . . . that by entering a plea of guilty, if the
      Court accepts that plea, then there’s going to be no trial, and you will
      have waived, or given up your right to a trial, as well as all of the
      associated rights that I have described today for you?

      [DEFENDANT]: Yes, I understand.

      THE COURT: And is it your intent to move forward today to enter a plea
      of guilty?

      [DEFENDANT]: Yes.



                                          -4-
Id. at 20. The next day, April 7, 1999, the government dismissed the charges against
defendant’s niece.

       The pre-sentence report calculated defendant’s offense level at 32 and his
criminal history category at III, for a guideline sentencing range of 151-188 months.
The district court granted defendant a downward departure on the ground that category
III overstated the seriousness of his prior criminal history. On November 9, 1999, the
district court sentenced sentenced defendant to a total of 121 months imprisonment, 1
month over the 120-month mandatory minimum sentence, 5 years supervised release,
and a special assessment of $200.00. This appeal followed.

       For reversal, defendant argues that the district court erred in denying his motion
to suppress evidence seized from his apartment. He argues that there was no
reasonable suspicion for the police to stop and search his vehicle, there was no
probable cause for his arrest or to search his apartment, there were no exigent
circumstances to justify the warrantless entry of his apartment, and the incriminating
character of the possible explosive device was not immediately apparent. He also
argues that the district court erred in applying the good faith exception because the
issuing magistrate was misled by material omissions and misrepresentations in the
search warrant affidavit that the affiant knew were false or would have known were
false except for her reckless disregard for the truth.

       We do not reach the merits of defendant’s suppression argument because
defendant waived the right to appeal the denial of his motion to suppress. He did not
enter a conditional guilty plea reserving the right to appeal the denial of his motion to
suppress. “It is well established in this Circuit that a defendant who pleads guilty
waives all nonjurisdictional defenses.” United States v. Stewart, 972 F.2d 216, 217
(8th Cir. 1992); see also Smith v. United States, 876 F.2d 655, 657 (8th Cir.) (waiver
includes claims regarding search and seizure), cert. denied, 493 U.S. 869 (1989). It is
clear from the record that the government had refused to consent to a conditional guilty

                                          -5-
plea and that, before defendant entered his plea, he was advised by defense counsel and
the district court that his plea was not conditional and that it would result in a waiver
of his right to appeal the denial of his motion to suppress.

       However, defendant argues that his waiver of the right to appeal was not valid.
He argues that the district court’s statements during the sentencing hearing reasonably
led him to believe that he could appeal his conviction, including adverse determinations
of his pretrial motions. Defendant relies upon United States v. Buchanan, 59 F.3d 914
(9th Cir.), cert. denied, 516 U.S. 970 (1995), in support of this argument. Defendant
also argues that his waiver was not voluntary because it was induced in part by the
government’s offer to dismiss the charges against his niece.

       We hold that defendant’s waiver was valid. We look to the circumstances
surrounding the signing and entry of the plea agreement to determine whether the
defendant knowingly and voluntarily agreed to its terms. See Lindner v. Wyrick, 644
F.2d 724, 728 (8th Cir.), cert. denied, 454 U.S. 872 (1981). As noted above, before
he entered his plea, defendant was advised by defense counsel and the district court
that his plea was not conditional and that it would result in a waiver of his right to
appeal the denial of his motion to suppress.

       In addition, this court has declined to adopt the reasoning of United States v.
Buchanan. See United States v. Michelsen, 141 F.3d 867, 872 (8th Cir.), cert. denied,
525 U.S. 942 (1998). In United States v. Buchanan the Ninth Circuit held that the
defendant had a reasonable expectation that he could appeal his sentence, despite the
contrary indication in the written plea agreement, based on the district court’s oral
statement at sentencing that he had a right to appeal his sentence. See 59 F.3d at
917-18. We reasoned instead that “[a]ny statement by the court at the sentencing
hearing could not have affected [the defendant’s] decision, made nearly three months
earlier, to plead guilty and waive his appellate rights.” United States v. Michelsen, 141
F.3d at 872. In the present case, the record clearly shows that the district court’s

                                          -6-
statements during the sentencing hearing could not have reasonably led defendant to
expect that he could appeal the denial of his motion to suppress. The district court
advised defendant that he could appeal his conviction if his “guilty plea was somehow
unlawful, or it was involuntary, or there was some other fundamental defect in all of
these proceedings that wasn’t waived by the fact that you have pled guilty.”
Sentencing transcript at 22. In any event, the district court’s statements advising
defendant about his right to challenge the validity of his guilty plea could not
unilaterally revoke the earlier waiver of his right to appeal the denial of his motion to
suppress. See United States v. Michelsen, 141 F.3d at 872.

      Finally, defendant’s plea was not involuntary because it was induced in part by
the government’s offer to dismiss the charges against his niece. See, e.g., United States
v. Vest, 125 F.3d 676, 680 & n.6 (8th Cir. 1997) (holding guilty plea was not
involuntary even though induced by promise of leniency to defendant’s brothers as long
as government acted in good faith based upon probable cause to file charges against or
to prosecute them), cert. denied, 120 S. Ct. 548 (1999).

      Accordingly, we affirm the judgment of the district court.



      A true copy.

             Attest:

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




                                          -7-
