                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0456n.06
                                                                                           FILED
                                           No. 09-4579
                                                                                      Jul 06, 2011
                             UNITED STATES COURT OF APPEALS                    LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE SOUTHERN
v.                                                       )        DISTRICT OF OHIO
                                                         )
RYAN COFER,                                              )                          OPINION
                                                         )
       Defendant-Appellant.                              )



BEFORE:        SILER, COLE, and KETHLEDGE, Circuit Judges.

       COLE, Circuit Judge. After unsuccessfully challenging the legality of a search that

uncovered child pornography on several computer disks in his residence, Ryan Cofer pleaded guilty

to possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Because Cofer had a

prior conviction under § 2252, the district court imposed a ten-year statutory minimum sentence of

incarceration. See 18 U.S.C. § 2252(b)(2). Cofer now appeals, contending the search of his

residence violated the Fourth Amendment to the United States Constitution, and the imposition of

a ten-year statutory minimum sentence violated his Sixth Amendment rights as elaborated in

Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny.

       We cannot reach the first challenge because Cofer waived the right to contest the legality of

the search by not preserving that right in the plea agreement. See United States v. Young, 580 F.3d

373, 376 (6th Cir. 2009) (“[A] guilty-pleading defendant may not appeal an adverse pre-plea ruling
No. 09-4579
United States v. Cofer

on a motion to suppress evidence unless he has preserved the right to do so in a written plea

agreement under Criminal Rule 11(a)(2).”).

       The remaining claim is meritless. Section 2252(b)(2) requires the district court to impose

a minimum sentence of ten years’ incarceration where a defendant previously committed a qualifying

prior conviction, see 18 U.S.C. § 2252(b)(2), and Apprendi explicitly permits a district court to find

such a fact and rely on it to increase a defendant’s punishment. See Apprendi, 530 U.S. at 490.



       We AFFIRM Cofer’s sentence.




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