                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                          JAN 25 2016

                                                                        MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                        U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                        No. 13-10249

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00262-WBS-1

  v.
                                                 MEMORANDUM*
TEVIN TAN,

              Defendant - Appellant.


                  Appeal from the United States District Court
                       for the Eastern District of California
                William B. Shubb, Senior District Judge, Presiding

                    Argued and Submitted November 16, 2015
                            San Francisco, California

Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.

       Defendant Tevin Tan (“Tan”) pleaded guilty to one count of manufacturing

at least 100 marijuana plants. 21 U.S.C. § 841(a)(1). Tan appeals his conviction,

arguing that the marijuana plants and other evidence in his case should have been

suppressed, because the search warrant affidavit for his house lacked probable



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
cause on its face, and relied on evidence obtained through unconstitutional

searches. Tan also argues that he has not waived the right to appeal the denial of

his motion to suppress that evidence because the district court explicitly informed

him that this right was preserved. We have jurisdiction under 28 U.S.C. §§ 1291

and 1294(1). We hold that Tan did not waive his appellate rights, and we affirm

the denial of Tan’s motion to suppress the evidence.



      Tan argues that the written waiver of his right to appeal his conviction is

invalid. We agree. Under the unique circumstances here, Tan had a reasonable

expectation that he could appeal the denial of his motion to suppress because when

he pleaded guilty, the district court explicitly advised him this right was preserved.

See United States v. Felix, 561 F.3d 1036, 1040–41 (9th Cir. 2009). When

discussing the sentencing agreement, the district court personally informed Tan

that his right to appeal the sentence was preserved, but did not explicitly instruct

Tan on the difference between appealing a conviction and appealing a sentence. In

this context, Tan could have been confused and had the reasonable expectation that

he maintained the right to appeal both. We therefore address the merits of Tan’s

appeal.




                                           2
      The district court did not err in rejecting Tan’s motion to suppress. Tan

argues that the means used to gather the evidence in the affidavit violated United

States v. Jones, 132 S. Ct. 945 (2012), and Florida v. Jardines, 133 S. Ct. 1409

(2013). This argument is foreclosed because the searches were “conducted in

objectively reasonable reliance on then-binding precedent” at the time they

occurred. United States v. Pineda-Moreno, 688 F.3d 1087, 1089 (9th Cir. 2012);

United States v. Thomas, 726 F.3d 1086, 1093 (9th Cir. 2013). In the absence of

any independent violation of the Fourth Amendment, the officers were entitled to

rely on the warrant approved by the magistrate. See United States v. Leon, 468

U.S. 897, 920–21 (1984); United States v. Clark, 31 F.3d 831, 835 (9th Cir. 1994).

AFFIRMED.




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