                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     December 19, 2006
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,
                                                         No. 05-5194
 v.                                               (D.C. No. 05-CR-21-TCK)
                                                         (N.D. Okla.)
 EM ILE D OUGLA S,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and HO LM ES, Circuit Judges.


      Defendant-Appellant Emile M elvin Douglas appeals from his conviction,

upon a guilty plea, of (1) possession with intent to distribute less than five grams

of a substance containing a detectable amount of cocaine base, 21 U.S.C. §§

841(a)(1), (b)(1)(C) (count I), (2) possession of a firearm in furtherance of a drug

trafficking offense, 18 U.S.C. § 924(c)(1)(A) (count II); and (3) possession of a

firearm by a felon, 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (count III). He was

sentenced to imprisonment of 106 months, 46 months concurrently on counts I




      *
        This order and judgment is not binding precedent, except under the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.
and III followed by a consecutive term of 60 months on count II. He was further

sentenced to five years of supervised release and ordered to pay a $1,000 fine.

On appeal, he challenges both the district court’s denial of his motion to withdraw

his plea and the court’s earlier denial of his motion to suppress. Our jurisdiction

arises under 18 U.S.C. § 1291, and we affirm.



                                    Background

      On November 22, 2004, Tulsa police executed a search warrant at the home

of a suspected cocaine dealer at 1417 East Reading Street. As officers

approached the home, they observed a man and a woman sitting in the front seat

of a purple C adillac that was parked in the front yard. Officer Kevin Hill

approached the Cadillac on the passenger’s side and noticed the “fairly strong

odor” of burnt marijuana emanating from the partially opened front passenger

window. IV R. at 35. Officer Hill identified himself as a Tulsa police officer and

instructed the front seat passenger–M r. D ouglas–to put his hands on his head.

Rather than doing so, M r. D ouglas leaned forw ard and reached under the seat.

Fearing for his safety, the officer opened the car door while continuing to issue

comm ands to M r. Douglas. M r. Douglas began complying with the orders, and

Officer Hill removed him from the car and, with the help of Officer Jeff

Henderson, handcuffed him.

      Officer Hill then examined the area underneath the seat where M r. Douglas

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had appeared to reach a few seconds before. He recovered a marijuana cigarette

that was still burning, a loaded .380-caliber semiautomatic handgun, and a bag

with rocks of what was later determined to be crack cocaine. M eanwhile, Officer

Henderson searched M r. Douglas, discovering a set of keys. The officers

determined that one of the keys unlocked an Oldsmobile that was parked in the

driveway of the home. Their subsequent search of that automobile uncovered a

digital scale and a .357-caliber revolver.

      Following his indictment on February 10, 2005, M r. Douglas entered a plea

of not guilty and moved to suppress the evidence seized during the police raid.

The district court held a suppression hearing, ultimately determining both that the

officers had probable cause to search the vehicles and that the searches w ere

justified by officer safety concerns. See IV R. at 48-49.

      M r. Douglas then decided to change his plea. On June 21, 2005, he

appeared before a magistrate judge. The magistrate judge began by determining

that M r. Douglas was competent. V R. at 3-4. Then, he ascertained that M r.

Douglas had consulted with his attorney and understood the advice he was given

and the charges he faced. Id. at 4-5. The magistrate judge obtained a waiver of

M r. Douglas’s right to plead guilty before an Article III judge. Id. at 5-6. Next,

the magistrate judge explained to M r. Douglas his constitutional trial rights and

informed M r. Douglas that he would waive those rights by pleading guilty. Id. at

6-7. The magistrate judge then listed the charges against M r. Douglas, explained

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their elements, and informed M r. Douglas of the sentences that he faced. Id. at 9-

12. After agreeing that he understood and wished to waive his trial rights, M r.

Douglas entered guilty pleas to each offense. In the process, the magistrate judge

determined that there was a factual basis for the plea based upon M r. Douglas’s

statements and admissions to the elements of the offenses. Id. at 14-17.

      As part of this proceeding, the magistrate judge specifically asked M r.

Douglas, “Is [sic] your plea of guilty and your waivers of your rights made

voluntarily and completely of your own free choice?” Id. at 14. He responded,

“Yes.” Id. The magistrate judge then asked, “Is [sic] your plea of guilty and

your waivers of your rights free of any force, threats or pressure from anyone?”

Id. Again, M r. Douglas replied, “Yes.” Id. The magistrate judge concluded that

M r. Douglas was competent and that his pleas w ere entered freely and voluntarily

with full comprehension of their effect. Id. at 18.

      On September 14, the district court received a letter from M r. Douglas

which it construed as a pro se motion to withdraw his guilty plea. See I R. Doc.

26. In the letter, M r. Douglas explained that “[a]t the time of my plea[,] I was

under severe stress and anguish while being housed at the D avid L. M oss

Criminal Justice Center.” Id. He went on to allege that he had spent the better

part of seven months housed in segregation without justification, that he had been

assaulted and pepper sprayed while in handcuffs by guards, and that he had been

locked in an empty cell wearing only his boxer shorts on two occasions. Id. As a

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result of this treatment, M r. Douglas explained, he had pled guilty because it was

“the quickest way to be transferred away from [the M oss] jail. I was suffering

tremendously and was not in the right state of mind to enter in to [sic] the plea

agreement.” Id.

      At the sentencing hearing on October 3, the district court questioned M r.

D ouglas about his letter. V I R . at 2-6. It then examined the seven factors we

have required district courts to consider when deciding whether to allow a

defendant to withdraw a guilty plea. Concluding that the w eight of the factors

was “pretty overw helming against the defendant in this case,” id. at 9, the court

denied M r. Douglas’s motion to withdraw his plea, id. at 13. Then, the court

sentenced M r. Douglas to “the very minimum I can give” within the Sentencing

Guideline range. Id. at 20.



                                     Discussion

I.    W ithdrawal of the Guilty Plea

      On appeal, M r. Douglas first argues that the district court erred by denying

his motion to withdraw his guilty plea. Fed. R. Crim. P. 11(d)(2)(B) provides that

a defendant may withdraw his guilty plea after the court accepts the plea but

before it imposes sentence if he “can show a fair and just reason for requesting

the w ithdrawal.” The defendant bears the burden of establishing a fair and just

reason. United States v. Black, 201 F.3d 1296, 1299 (10th Cir. 2000).

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      Our precedent recognizes seven factors that are relevant in evaluating

whether a fair and just reason exists:

      (1) whether the defendant has asserted his innocence; (2) whether the
      government will be prejudiced if the motion is granted; (3) whether
      the defendant has delayed in filing the motion; (4) the inconvenience
      to the court if the motion is granted; (5) the quality of the
      defendant’s assistance of counsel; (6) whether the plea was knowing
      and voluntary; (7) whether the granting of the motion would cause a
      waste of judicial resources.

Id. at 1299-1300. W e review the question of whether the plea was knowing and

voluntary de novo, but we analyze the district court’s denial of the motion to

withdraw the guilty plea for an abuse of discretion. Id. at 1300.

      Of the seven factors, M r. Douglas challenges only the sixth: that his plea

was knowing and voluntary. Ample evidence suggests that M r. Douglas entered

his plea knowingly; i.e., with “a full understanding of what the plea connotes and

of its consequence.” U nited States v. Hurlich, 293 F.3d 1223, 1230 (10th Cir.

2002) (internal quotation marks and citation omitted). M r. Douglas stated

repeatedly that he understood his constitutional trial rights and that, by pleading

guilty, he would waive them. He indicated an understanding of the charges

against him both when they were explained to him and when he responded.

Tellingly, the argument that the plea w as unknowing appears nowhere in M r.

Douglas’s motion to withdraw his plea, the transcript of the sentencing hearing,

or in the briefs. W e are satisfied that M r. Douglas pled guilty with “a full

understanding of what the plea connotes and of its consequence.” Id.

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      However, a guilty plea must also “represent[] a voluntary and intelligent

choice among the alternative courses of action open to the defendant.” N orth

Carolina v. Alford, 400 U.S. 25, 31 (1970). M r. Douglas argues that the

conditions of his confinement rendered his plea involuntary. Although he admits

that he received no overt pressure to plead guilty, he contends that his plea was

motivated by his desire to get out of the M oss Criminal Justice Center as soon as

possible.

      Assuming, without deciding, that the conditions of an inmate’s

incarceration could be so severe as to render a plea involuntary, we conclude that

M r. Douglas has failed to establish that the conditions alleged in this case rose to

that level and coerced his guilty plea. There is no evidence in the record that M r.

Douglas ever sought administrative remedies or complained about his

confinement conditions to correctional officials. He has not alleged any

connection between the alleged abuse and his decision to plead guilty; for

example, he does not contend that any of the offending guards told him that his

situation would improve if he pled guilty. Likewise, M r. Douglas has not

explained why he believed that a guilty plea would hasten his departure from the

M oss Criminal Justice Center. As the district court noted, even after his guilty

plea, M r. Douglas remained in that facility for more than three months before his

sentencing. VI R. at 4.

      Furthermore, M r. Douglas had ample opportunity to raise these issues

                                         -7-
before entering his guilty plea. He did not bring the alleged abuse to the

magistrate judge’s attention at any point during the plea colloquy. Indeed, he

specifically informed the court that his pleas were “voluntary and completely of

[his] own free choice” and “free of any force, threats or pressure from anyone.”

V R. at 14. M r. Douglas also stated that he w as pleading guilty because he w as,

in fact, guilty. Id. at 15. The magistrate judge, after speaking with M r. Douglas

and observing his demeanor during the hearing, concluded that the plea was

voluntary. Id. at 18.

      Finally, we note that M r. Douglas was represented by counsel and, in fact,

followed his attorney’s advice by pleading guilty. His attorney candidly informed

the court at sentencing that, although he was aware of the unusual conditions of

M r. Douglas’s confinement at the time the plea w as entered, he believed that M r.

Douglas was competent at the time he entered his guilty plea. See VI R. at 10-11.

He also stated that he still believed it was in his client’s best interest to plead

guilty and had continued to advise him as such. Id. at 11.

      W e conclude that M r. D ouglas’s guilty pleas were knowing and voluntary.

Because M r. Douglas had not challenged the district court’s findings with respect

to the other six Gordon factors, w e are satisfied that the court did not abuse its

discretion in denying his motion to withdraw his plea.

II.   Suppression

      M r. Douglas also argues that the district court erred by denying his pretrial

                                           -8-
motion to suppress the evidence seized from the Cadillac. In Tollett v.

Henderson, 411 U.S. 258 (1973), the Supreme Court held that “[w]hen a criminal

defendant has solemnly admitted in open court that he is in fact guilty of the

offense with which he is charged, he may not thereafter raise independent claims

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

of the guilty plea.” Id. at 267. In the wake of Tollett, we have recognized that “a

voluntary plea of guilty forecloses a defendant’s right to object to the manner in

which he was arrested or the manner in which the evidence may have been

obtained against him.” U nited States v. Nooner, 565 F.2d 633, 634 (10th Cir.

1977); see also United States v. Salazar, 323 F.3d 852, 856 (10th Cir. 2003). M r.

Douglas did not enter a conditional plea of guilty allowing him to appeal the

denial of the motion to suppress. See Fed. R. Crim. P. 11(a)(2). Accordingly,

having entered an unconditional guilty plea, M r. Douglas may not challenge the

denial of his motion to suppress on appeal. See United States v. Davis, 900 F.2d

1524, 1526-27 (10th Cir. 1990).

      A FFIR ME D.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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