                                                           [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                   FILED
                           ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                  June 8, 2005
                                 No. 04-12183
                                                              THOMAS K. KAHN
                             Non-Argument Calendar                CLERK
                           ________________________

                    D. C. Docket No. 03-00274-CR-T-27-TBM

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                       versus

JIMMY LEE WHITE,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                   (June 8, 2005)

Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:

      Jimmy Lee White appeals his conviction and sentences for possession with

intent to distribute five grams or more of cocaine base (crack cocaine), 21 U.S.C.
§ 841(a)(1) & (b)(1)(B)(iii); possession with intent to distribute cocaine, 21 U.S.C.

§ 841(a)(1) & (b)(1)(C); and possession with intent to distribute marijuana, 21

U.S.C. § 841(a)(1) & (b)(1)(D). After the district court denied his motion to

suppress certain statements he had made to law enforcement, White pleaded guilty

to all charges. White did not at any time reserve a right to appeal the denial of the

motion to suppress. On appeal, White raises three issues, which will be discussed

in turn.

       First, White argues that the district court erred in denying his motion to

suppress his statements because the statements were obtained in violation of his

Fifth Amendment right to remain silent. He contends that, after he invoked his

right to remain silent, law enforcement resumed interrogation without

“scrupulously honoring” his previous exercise of his right to remain silent.

       When a defendant knowingly and voluntarily enters an unconditional guilty

plea, he waives all non-jurisdictional defects in his court proceedings. United

States v. Patti, 337 F.3d 1317, 1320 (11th Cir. 2003), cert. denied, 124 S.Ct. 1146

(2004). A district court’s refusal to suppress evidence is non-jurisdictional and is

waived by a guilty plea. United States v. McCoy, 477 F.2d 550, 551 (5th Cir.

1973). The Federal Rules of Criminal Procedure provide that: “With the consent

of the court and the government, a defendant may enter a conditional plea of guilty



                                           2
or nolo contendere, reserving in writing the right to have an appellate court review

an adverse determination of a specified pretrial motion.” Fed.R.Crim.P. 11(a)(2);

see also United States v. Pierre, 120 F.3d 1153, 1155 (11th Cir. 1997) (holding that

a defendant who wishes to preserve appellate review of a non-jurisdictional defect

while at the same time pleading guilty can do so only by entering a “conditional

plea” in accordance with Rule 11(a)(2)).

      White has waived his right to appeal the denial of his motion to suppress by

entering into an unconditional guilty plea, without reserving in writing the right to

appeal the denial of his motion to suppress. White, moreover, has no argument in

his brief that his guilty plea was not knowing or voluntary. Thus, we will not

review the denial of the motion to suppress.

      Second, White argues that the district court erred in assessing a two-level

sentencing enhancement for possession of a weapon because, pursuant to Blakely

v. Washington, 542 U.S. __, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the fact of

possession of a weapon was not decided by the jury beyond a reasonable doubt nor

admitted by him. White did not raise this issue below.

      When a defendant fails to make an objection or argument in the district

court, review is limited to plain error. See United States v. Duncan, 381 F.3d 1070,

1073 (11th Cir. 2004). “We have discretion to correct an error under the plain



                                           3
error standard where (1) an error occurred, (2) the error was plain, (3) the error

affected substantial rights, and (4) the error seriously affects the fairness, integrity

or public reputation of judicial proceedings.” Id. at 1073-74 (internal citations

omitted).

      Two important cases have been issued since the time that White submitted

his briefs. The first is United States v. Booker, 542 U.S. __, 125 S.Ct. 738 (2005),

in which the Supreme Court held that the use of a mandatory sentencing guidelines

system in which sentences are increased because of an enhancement based on facts

found by the judge but not admitted by the defendant or found by the jury violated

the Sixth Amendment right to trial by jury. The second case is United States v.

Rodriguez, __ F.3d __, 2005 WL 272952 (11 th Cir. Feb. 4, 2005), in which this

court applied the plain error test to an appellant’s Booker challenge. There, the

court determined that the error committed by the sentencing judge was “the use of

extra-verdict enhancements to reach a guidelines result that is binding on the

sentencing judge; the error is the mandatory nature of the guidelines once the

guidelines range has been determined.” Rodriguez, 2005 WL 272952 at *9. Under

the third prong of the plain error test, the court continued,

      where the effect of an error on the result in the district court is
      uncertain or indeterminate–where we would have to speculate–the
      appellant has not met his burden of showing a reasonable probability
      that the result would have been different but for the error; he has not

                                            4
       met his burden of showing prejudice; he has not met his burden of
       showing that his substantial rights have been affected.

Id. at *10 (citing Jones v. United States, 527 U.S. 373, 394-95, 119 S.Ct. 2090

2105 (1999)).

       Like the appellant in Rodriguez, White cannot meet his burden of showing

that his substantial rights have been affected. He has not produced any evidence

that the district court felt constrained by the mandatory nature of the guidelines and

only because of those constraints sentenced him to 87 months on Counts 1 and 2

and 60 months on Count 3.1

       Third, White argues that the district court erred in failing to apply a

two-level reduction under U.S.S.G. § 2D1.1(b)(6) when he satisfied all the criteria

set forth in § 5C1.2 (listing criteria for safety valve relief as found in 18 U.S.C.

§ 3553(f)).

       We review sentencing claims raised for the first time on appeal for plain

error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). Section


       1
          Moreover, White’s Blakely challenge is focused solely on the two-level enhancement
for possession of a weapon. However, at sentencing, White expressly withdrew his objection to
this enhancement, in effect admitting that he did in fact possess the weapon and the enhancement
was in fact appropriate. Thus, no judicial fact-finding was involved, and there would have been
no Sixth Amendment or Blakely error even in the context of mandatory guidelines because of
White’s admission. See United States v. Shelton, __ F.3d __, 2005 WL 435120 at *4 (11th Cir.
Feb. 25, 2005) (finding no Sixth Amendment error in similar circumstances). Even though there
was no Sixth Amendment error, there was Booker error in that the sentencing judge considered
the Guidelines as binding rather than advisory. Id. at *5. However, as explained in the text,
White cannot satisfy the plain error analysis with respect to this error.

                                               5
2D1.1(b)(6) of the Sentencing Guidelines provides a two-level reduction for a

defendant who meets the five requirements of the safety valve relief set forth in

U.S.S.G. § 5C1.2. One criteria requires in pertinent part that the defendant did not

use violence or credible threats of violence or possess a firearm or other dangerous

weapon (or induce another participant to do so) in connection with the offense.

U.S.S.G. § 5C1.2(a)(2).

      The district court did not commit plain error in failing to apply a reduction

under U.S.S.G. § 2D1.1(b)(6) pursuant to § 5C1.2 where White did not dispute that

he possessed firearms in connection with his offenses.

      Accordingly, we affirm White’s conviction and sentences.

      AFFIRMED.2




      2
          Appellant’s request for oral argument is denied.

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