                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 30 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 99-7034
                                                    (D.C. No. CR-98-25-S)
    HAROLD GLEN CLAYTON,                                 (E.D. Okla.)

                Defendant-Appellant.


                             ORDER AND JUDGMEN T *


Before ANDERSON , BARRETT , and BRISCOE, Circuit Judges.




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

unanimously to grant 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.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Defendant Harold Glen Clayton conditionally pled guilty pursuant to

Fed. R. Crim. P. § 11(a)(2) to conspiracy to possess with intent to distribute

methamphetamine in violation of 21 U.S.C. § 846, to money laundering

conspiracy in violation of 18 U.S.C. § 1956(h), and to unlawful removal of

vehicle identification numbers in violation of 18 U.S.C. § 511(a). Defendant

claims the district court erred in denying his motions to suppress certain evidence

and to suppress the testimony of certain witnesses as violative of 18 U.S.C.

§ 201(c)(2) (prohibiting bribery of witnesses). Our jurisdiction arises under 28

U.S.C. § 1291 and we affirm.


                                        I. Facts

       On April 15, 1998, deputies from the Hughes County, Oklahoma Sheriff’s

Office arrested defendant pursuant to an arrest warrant on a charge of

racketeering. Deputies had observed defendant’s car outside his business, the

Sandy Bar Game Club. Four officers wearing bullet proof vests surrounded the

premises. Two of the officers testified they were concerned for their safety in

making the arrest because weapons had been involved in many of their earlier

interactions with defendant and because defendant had threatened officers on

earlier occasions.   See R. Vol. VI, at 35, 52. One officer, Deputy Sutterfield,

testified that while he was outside the club, he heard noises in the southeast



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corner of the building which sounded like someone moving objects around.        See

id. at 54-55.

       The deputies entered the club into a hallway and then into a concession

area, which one officer estimated to be approximately twenty-five to thirty-five

feet wide and forty-five to fifty-five feet long. The officers saw defendant and

another man they did not recognize, a Mr. Blackman, in the concession area.

Defendant was informed he was under arrest. He was allowed to use the

restroom, after which he was handcuffed in the hallway and escorted out of the

building. During this time, the other officers questioned Mr. Blackman and

determined that he had no outstanding arrest warrants. When questioned, Mr.

Blackman said he did not know what was going on in the southeast corner of the

concession area where noises had been heard. Deputy Sutterfield testified that he

walked over to that corner because he was concerned there could be something of

danger there, that he observed an icebox in the corner and then observed a black

gun case on the south side of the icebox.    See id. at 57-59. Deputy Sutterfield

opened the gun case, which contained two firearms. Deputy Sutterfield testified

the arresting officer had just started to handcuff the defendant in the hallway

during this time.   See id . at 60. Deputy Sutterfield and the remaining officers left

the club with Mr. Blackman approximately five minutes after the arresting officer

left with the defendant. Later that day, the deputies obtained a search warrant to


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search the club for firearms based on their observation of the gun case and

firearms during their search during the arrest. The search was conducted the next

day, during which officers discovered evidence of other crimes, including those to

which defendant ultimately pled guilty.


                                II. Protective Sweep

      Defendant claims that the district court erred in denying his motion to

suppress the evidence seized during the search of the Club. We recently

described our standard of review of a district court’s denial of a motion to

suppress evidence as follows:

      When reviewing a district court’s denial of a motion to suppress, we
      consider the totality of the circumstances and view the evidence in a
      light most favorable to the government. We accept the district
      court’s factual findings unless those findings are clearly erroneous.
      The credibility of witnesses, the weight to be given evidence, and the
      reasonable inferences drawn from the evidence fall within the
      province of the district court. Keeping in mind that the burden is on
      the defendant to prove that the challenged seizure was illegal under
      the Fourth Amendment, the ultimate determination of reasonableness
      under the Fourth Amendment is a question of law reviewable de
      novo.

United States v. Long , 176 F.3d 1304, 1307 (10th Cir. 1999) (citations omitted),

cert. denied , 1999 WL 669593 (U.S. Oct. 4, 1999) (No. 99-5944).

      Defendant claims the evidence should have been suppressed as the fruit of

an illegal search during his arrest, which he claims was in violation of the Fourth

Amendment because he was already handcuffed and outside in the hallway when

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Deputy Sutterfield searched the corner of the concession area. Defendant argues

that since he was already arrested, the officers had no reason to fear for their

safety and, therefore, no protective sweep was necessary.

       “A ‘protective sweep’ is a quick and limited search of premises, incident to

an arrest and conducted to protect the safety of police officers or others.”

Maryland v. Buie , 494 U.S. 325, 327 (1990). Such a search is limited to a

“cursory visual inspection of those places in which a person might be hiding.”

Id. It is constitutional if the officers had “a reasonable belief based on specific

and articulable facts which, taken together with the rational inferences from those

facts, reasonably warrant[ed] the officer in believing that the area swept harbored

an individual posing a danger to the officer or others.”   Id. (citations and

quotations omitted) (alteration in original).

       Applying these principles, we conclude that the limited search of the

concession area of the club did not violate the Fourth Amendment. Firearms had

been involved in earlier police interactions with defendant and the defendant had

made threats to officers on other occasions. An officer heard noises coming from

the southeast corner of the club and testified that he was concerned something of

danger to the officers could be in that corner and that other individuals besides

defendant or Mr. Blackman could have been hiding behind the icebox.        See

R. Vol. VI, at 56-57, 73. These facts and the inferences drawn therefrom are


                                             -5-
sufficient to establish that the officers had a reasonable belief that someone

posing a danger to them might be in the corner of the room. Even though

defendant was under arrest and in the hallway during the search, Deputy

Sutterfield’s reasonable concern that an accomplice might have been on the

premises justified the protective sweep of the room.        See Buie , 494 U.S. at 334

(stating the Court is “quite sure” that officers are permitted “to take reasonable

steps to ensure their safety [both] after, and while making, the arrest”);     United

States v. Tisdale , 921 F.2d 1095, 1097 (10th Cir. 1990) (“[T]he danger which

justifies a protective sweep comes from the possible presence of         other armed and

dangerous persons in the vicinity.”). The search itself was “quick and limited.”

Buie , 494 U.S. at 327. Under these circumstances, we conclude that Deputy

Sutterfield properly conducted a protective sweep of the Club in order to ensure

the safety of the officers.   See id . Such conduct does not constitute an

unreasonable search under the Fourth Amendment. As a result, the district court

properly denied the motion to suppress the evidence seized during the subsequent

search of the Club pursuant to the search warrant.




                                             -6-
                                     III. Singleton Issue

       Defendant next contends the district court erred in denying his motion to

suppress the testimony of witnesses who may have been promised a reduced

charge or prosecutorial immunity if they testified against him. Relying on        United

States v. Singleton , 144 F.3d 1343 (10th Cir. 1998), he claims any such promises

were in violation of 18 U.S.C. § 201(c)(2), which prohibits bribery of witnesses.

Defendant acknowledges that      Singleton was vacated and later superceded on

rehearing by this court’s en banc ruling that § 201 does not prohibit a prosecutor,

acting as an agent of the government, from making “a concession normally

granted by the government in exchange for testimony.”         United States v.

Singleton , 165 F.3d 1297, 1302 (10th Cir.) (en banc),      cert. denied , 119 S. Ct.

2371 (1999). Defendant admits that he raised this claim merely to preserve this

issue pending certiorari review of the      Singleton case by the Supreme Court. The

Court has now denied certiorari in       Singleton , and we are bound by this court’s en

banc opinion.


                             IV. Breach of Plea Agreement

       We granted defendant’s motion for leave to file a supplement        pro se brief

even though he is represented by counsel. In this brief, defendant argues the

government breached the terms of his plea agreement. He claims that it promised

him that no sentencing enhancements would be applied to him, including any

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adjustments to his base offense level or the determination of his criminal history

category. The plea agreement was not in writing, although defendant’s

reservation of the right to appeal certain specified pretrial orders was in writing,

as required by Fed. R. Crim. P. 11(a)(2).

       Whether the government violated a plea agreement is a question of law that

this court reviews de novo.    See United States v. Brye , 146 F.3d 1207, 1209 (10th

Cir. 1998). The terms of the plea agreement were presented in court in the

defendant’s presence. Defendant’s counsel stated that the government agreed

only to dismiss certain charges in exchange for defendant’s conditional guilty plea

and that there were no other promises.     See Appellee’s Suppl. Br., Ex. 2, at 32-33.

Defendant agreed to this description of the plea agreement, and agreed that the

government had not “promised, suggested or predicted” that he would “receive a

lighter sentence or probation or any other form of leniency” if he pled guilty.    Id.

at 31, 33. In his objections to the presentence report, defendant did not claim that

the government had breached any terms of the plea agreement with respect to

sentencing. Thus, defendant has failed to present any evidence indicating that the

government breached the terms of the plea agreement.         See Allen v. Hadden , 57

F.3d 1529, 1534 (10th Cir. 1995) (“[T]he party who asserts a breach of a plea

agreement has the burden of proving the underlying facts that establish a breach

by a preponderance of the evidence.”).


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     The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.


                                                  Entered for the Court



                                                  Stephen H. Anderson
                                                  Circuit Judge




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