                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 11, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-3266
 v.                                          (D.Ct. No. 2:07-CR-20166-JWL-1)
                                                          (D. Kan.)
 VICTOR CANALES-MEDINA,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BRISCOE, BRORBY, and McCONNELL, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.



      Defendant-Appellant Victor Canales-Medina pled guilty, without a written

plea agreement, to one count of illegal reentry after deportation following a

      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
felony conviction, pursuant to 8 U.S.C. § 1326(a) and (b)(2), and received a

sentence of forty-six months imprisonment. He now appeals his conviction on

grounds the district court abused its discretion in denying his motion to suppress

evidence obtained during a second interview following an initial interview in

which he was not advised of his Miranda rights and made incriminating

statements. In raising this issue, he claims the district court impermissibly failed

to follow the Supreme Court’s decision in Missouri v. Seibert, 542 U.S. 600

(2004). In response, the government seeks dismissal of the appeal on appellate

waiver grounds, which we construe as a motion to dismiss. We grant the

government’s motion and dismiss Mr. Canales-Medina’s appeal. 1



                       I. Factual and Procedural Background

      While our resolution of Mr. Canales-Medina’s appeal is based on waiver

grounds, we nevertheless recount facts on which the district court relied for the

purpose of explaining the charge on which Mr. Canales-Medina was convicted

and presenting the suppression issue he raises on appeal. In addressing the

appellate waiver issue, we recount Mr. Canales-Medina’s statements to the

district court during his plea hearing for the purpose of establishing the

voluntariness of his guilty plea through which he unconditionally waived his

      1
        See United States v. Hahn, 359 F.3d 1315, 1318 (10 th Cir. 2004) (en
banc) (per curiam) (explaining where a valid appellate waiver exists, the appeal is
dismissed).

                                         -2-
appellate rights.



      To begin, Mr. Canales-Medina is a Mexican citizen who received

convictions in 1997 for two separate felony drug-related offenses. Following his

imprisonment, the government deported him back to Mexico in 1998. On

December 10, 2007, Kansas City, Kansas police officers arrested Mr. Canales-

Medina for driving under the influence of alcohol. Following his arrest, police

officers transported him to the Wyandotte County Jail where Mr. Canales-Medina

identified himself with a fictitious name, “Rolando Medina,” and officials took

his photograph and fingerprints in conjunction with standard booking procedure.

After he arrived at the jail, Mr. Canales-Medina paid the $100 bond required and

a bonding official wrote out a receipt an hour later. Meanwhile, authorities ran

the name “Rolando Medina” through the database for the National Crime

Information Center (NCIC) and discovered Mr. Canales-Medina’s true identity

through his fingerprints.



      As a result, booking officials continued to detain Mr. Canales-Medina and

conducted another search of the NCIC database using his real name; they then

received information he was a deported felon. Based on this information, they

contacted an Immigration and Customs Enforcement (ICE) agent who interviewed

Mr. Canales-Medina in the jail; the agent later testified he did not advise Mr.

                                         -3-
Canales-Medina of his Miranda rights because he considered it an administrative

interview. During the interview Mr. Canales-Medina admitted he had previously

been deported.



      Following the interview, the agent received Mr. Canales-Medina’s “Alien

File” (A-File), which contained a record of his prior convictions and deportation.

The agent later testified he did not discover the specific reason for Mr. Canales-

Medina’s previous deportation until receiving and reading that file. The same

agent interviewed Mr. Canales-Medina again on December 13, 2007, at which

time the agent provided him with a Miranda warning in both English and Spanish,

after which Mr. Canales-Medina signed a waiver of his Miranda rights, provided

his fingerprint, and admitted in writing to having previously been deported and

convicted of a crime in the United States.



      Following his indictment for illegal reentry after deportation following a

felony conviction, Mr. Canales-Medina filed a motion to suppress his statements

and information on his immigration status obtained on December 10, 2007,

claiming any information obtained on that date should be suppressed, based on:

(1) his alleged illegal four-hour detention in jail after paying his bond; and (2)

failure to receive the required Miranda warning. He also sought suppression of

the information obtained from his second interview on December 13, 2007,

                                          -4-
claiming the initial interview conducted without a Miranda warning negated the

voluntariness of the second interview under the standard set forth in Missouri v.

Seibert.



      The district court held a hearing on Mr. Canales-Medina’s motion to

suppress and, thereafter, in a comprehensive Memorandum and Order, granted, in

part, and denied, in part, his motion to suppress. It determined any information

obtained as a result of the booking procedure and detention should not be

suppressed based on its findings that the length of Mr. Canales-Medina’s

detention was reasonable under the circumstances and officials lawfully obtained

Mr. Canales-Medina’s initial fingerprints in the course of booking him for his

driving under the influence arrest. However, the district court granted Mr.

Canales-Medina’s motion to suppress in regard to any statements he made in his

first interview, on December 10, 2007, determining a Miranda warning should

have been given. It then determined his A-File, obtained from the NCIC search,

would inevitably have been discovered, even if he had not been interrogated, and

therefore should not be suppressed.



      Finally, the district court denied Mr. Canales-Medina’s motion to suppress

his written admissions from his second interview on December 13, 2007. In

denying his motion, the district court relied on Oregon v. Elstad, 470 U.S. 298,

                                         -5-
318 (1985), in holding the admissibility of Mr. Canales-Medina’s subsequent

admissions turned on whether he knowingly and voluntarily waived his Miranda

rights. It then determined the government carried its burden in showing Mr.

Canales-Medina knowingly and voluntarily waived those rights. The district

court also discussed the Supreme Court’s decision in Missouri v. Seibert, in which

a police officer deliberately failed to give a defendant a Miranda warning until

after she confessed and then questioned her again, eliciting yet another confession

following the warning. See 542 U.S. at 604-05, 612. The district court outlined

five factors it believed Seibert requires the courts to apply in a deliberate

“question-first” circumstance, but determined they did not apply in the instant

case based on its finding the ICE agent did not deliberately fail to provide a

Miranda warning in order to circumvent the Miranda safeguards or elicit a

confession from Mr. Canales-Medina; rather, the district court found the agent

failed to provide the warning because he mistakenly thought he did not need to

provide a warning because he considered the initial interview administrative in

nature. See id. at 611, 614-15.



      Following the district court’s ruling on his motion to suppress, Mr.

Canales-Medina pled guilty. During the plea hearing, Mr. Canales-Medina’s

attorney verified Mr. Canales-Medina intended to enter a plea of guilty to the

charge in the indictment without any written plea agreement. The district court

                                          -6-
then conducted a Rule 11 colloquy with Mr. Canales-Medina, advising him it

would ask him questions for the purpose of ascertaining whether his guilty plea

was knowingly and voluntarily made.



      During the colloquy, Mr. Canales-Medina acknowledged, among other

things, that he: (1) had a ninth-grade education; (2) had never been treated for

mental illness and was not under the influence of any drug, medication, or

alcoholic beverage; (3) had discussed his guilty plea with his attorney and was

fully satisfied with his counsel’s representation and advice; (4) understood that by

pleading guilty he was waiving certain guaranteed Constitutional rights, including

the right to a trial; (5) understood the punishment ranges established by statute

and the sentencing process as explained to him by his counsel and the district

court; (6) acknowledged the district court could not determine his exact sentence

until a later date and confirmed no one made any promises or guarantees about his

sentence; and (7) understood that by pleading guilty he would likely be deported

following incarceration and would be prohibited from reentering the United

States. In discussing his right to appeal and the consequences of pleading guilty

without a formal plea agreement, Mr. Canales-Medina stated he understood that

under some circumstances he would have the right to appeal but acknowledged, as

confirmed by his counsel, that he had been fully informed of the options available

to him and the consequences of those options, including those associated with

                                         -7-
pleading guilty without a formal written plea agreement, and was still willing to

plead guilty. Mr. Canales-Medina also agreed he committed the crime as

presented in the facts stated by the government and confirmed he entered his plea

of guilty to the charge in the indictment freely and voluntarily.



      In addition, Mr. Canales-Medina submitted a petition to enter his plea of

guilty, making representations similar to those made at the plea hearing. In

accepting his plea, the district court found Mr. Canales-Medina fully competent

and capable of entering an informed plea and that his plea of guilty was knowing

and voluntary as well as supported in fact as to each element of the offense.



      Following the plea hearing, a probation officer prepared a presentence

report calculating Mr. Canales-Medina’s sentence under the applicable 2007

United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). Thereafter,

the district court imposed a sentence at the low end of the Guidelines range to

forty-six months imprisonment. 2

      2
         The probation officer set Mr. Canales-Medina’s base offense level at
eight, pursuant to U.S.S.G. § 2L1.2(a); increased it sixteen levels, pursuant to
§ 2L1.2(b)(1)(A), because he had previously been deported following a conviction
for a felony drug trafficking offense; and recommended a three-level offense
reduction for acceptance of responsibility, for a total offense level of twenty-one.
His total offense level, together with his criminal history category of III, resulted
in a recommended Guidelines range of forty-six to fifty-seven months
imprisonment. Neither the government nor Mr. Canales-Medina filed any
                                                                        (continued...)

                                         -8-
                                    II. Discussion

      Mr. Canales-Medina now appeals his conviction on grounds the district

court abused its discretion in denying his motion to suppress evidence obtained

during his second interview with the ICE agent, who advised him of his Miranda

rights at that time, but who failed to provide those rights to Mr. Canales-Medina

in an earlier interview, during which time Mr. Canales-Medina gave incriminating

evidence. In support, he relies on the Supreme Court’s decision in Missouri v.

Seibert, stating the district court impermissibly failed to rely on it in denying his

motion. In response, the government moves for dismissal of the appeal on

appellate waiver grounds.



      We begin by addressing the appellate waiver issue, which is dispositive to

this appeal. “By entering a plea of guilty, the accused is not simply stating that

he did the discrete acts described in the indictment; he is admitting guilt of a

substantive crime.” United States v. Dwyer, 245 F.3d 1168, 1170 (10 th Cir. 2001)

(quotation marks and citation omitted). Consequently, a defendant who

unconditionally pleads guilty “may not thereafter raise independent claims

      2
       (...continued)
objections to the presentence report. However, Mr. Canales-Medina requested a
variant sentence under the 18 U.S.C. § 3553(a) sentencing factors based, in part,
on his argument that the sixteen-level enhancement overly or severely punished
him. After the district court denied Mr. Canales-Medina’s request for a variant
sentence, it imposed a sentence at the low end of the Guidelines range to forty-six
months imprisonment. Mr. Canales-Medina does not appeal his sentence.

                                          -9-
relating to the deprivation of constitutional rights that occurred prior to the entry

of the guilty plea.” United States v. Salazar, 323 F.3d 852, 855-56 (10 th Cir.

2003) (quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973)). As a result,

when a defendant voluntarily and unconditionally enters a guilty plea, we have

said he waives all non-jurisdictional defenses and thereby fails to reserve the right

to have the denial of his pretrial motion to suppress reviewed. 3 See id.; Fed. R.

Crim. P. 11(a)(2).



      In this case, Mr. Canales-Medina does not challenge the voluntary and


      3
          In cases involving written plea agreements, we have adopted a three-
prong analysis for determining whether an appellate waiver is enforceable, in
which we examine whether: (1) the disputed appeal falls within the scope of the
waiver of appellate rights; (2) the defendant knowingly and voluntarily waived his
appellate rights; and (3) enforcing the waiver would result in a miscarriage of
justice. See United States v. Rodriguez-Rivera, 518 F.3d 1208, 1214 (10 th Cir.
2008); Hahn, 359 F.3d at 1325. Under the third prong, a miscarriage of justice
occurs in situations where: (1) the district court relied on an impermissible factor
such as race; (2) ineffective assistance of counsel resulted in connection with the
negotiation of the waiver; (3) the sentence exceeds the statutory maximum; or (4)
the waiver is otherwise unlawful. See Hahn, 359 F.3d at 1327. This list is
exclusive and an appellate waiver will not result in a miscarriage of justice unless
one of these four situations occurs. See United States v. Shockey, 538 F.3d 1355,
1357 (10 th Cir. 2008). As to the fourth situation, concerning a waiver being
“otherwise unlawful,” we do not look to “whether another aspect of the
proceeding may have involved legal error” but look only “to whether the waiver
[itself] is otherwise unlawful.” Id. (quotation marks and citation omitted). Even
if we applied these exceptions here, where no plea agreement exists, Mr. Canales-
Medina has not raised any exception nor does the record reveal that any would
apply. Instead, he contends the district court abused its discretion in denying his
motion to suppress, which is not within one of the recognized exceptions we
consider in determining whether a waiver is unlawful.

                                          -10-
intelligent character of his unconditional guilty plea, and a review of the record

on appeal presents no such issue. Instead, a review of both his petition to enter

his plea of guilty and the transcript of the plea hearing indicate his plea was both

knowing and voluntary. Consequently, we are precluded on waiver grounds from

conducting an appellate review of the merits of the district court’s denial of Mr.

Canales-Medina’s motion to suppress evidence obtained during his second

interview with the ICE agent on December 13, 2007.



                                   III. Conclusion

      For the foregoing reasons, we GRANT the government’s motion to dismiss

on appellate waiver grounds and DISMISS Mr. Canales-Medina’s appeal.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




                                         -11-
