     Case: 17-50400      Document: 00514683766         Page: 1    Date Filed: 10/16/2018




                         REVISED October 16, 2018

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                      No. 17-50400                         October 15, 2018
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


              Plaintiff–Appellee,

v.

JEFFREY JERRY TORRES, also known as Jeffrey Torres, also known as
Jeffrey J. Torres, also known as J. J. Torres, also known as Jeff Torres, also
known as Jeffery Jerry Torres, Jr.,

              Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:16-CR-285-1


Before JONES, BARKSDALE, and WILLETT, Circuit Judges.
PER CURIAM:*
       “The doctrine of        waiver-by-guilty      plea” precludes        Torres from
challenging the denial of his motion to suppress. See United States v. Sealed
Appellant, 526 F.3d 241, 243 (5th Cir. 2008). Thus, we DISMISS the appeal.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-50400    Document: 00514683766      Page: 2   Date Filed: 10/16/2018



                                  No. 17-50400
                                       I
      In February 2015, a magistrate judge in the Eastern District of Virginia
authorized the FBI to use a Network Investigative Technique (“NIT”) on
computers accessing a child pornography website hosted on the dark web. The
NIT “attached computer code to [website] users when they logged onto the
website, and that code directed the user’s computer to send . . . identifying
information to a government computer.”
      FBI agents identified Torres’s computer, and determined he accessed the
website from the Western District of Texas. The FBI then received a search
warrant from a magistrate judge in that district, authorizing it to search
Torres’s home. During the search, agents discovered child pornography on his
computer. Torres was charged with receiving and possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(2) and 18 U.S.C.
§ 2252A(a)(5)(B), respectively.
      Torres moved to suppress all evidence obtained under the Eastern
District of Virginia warrant. He asserted that the magistrate judge violated 28
U.S.C. § 636(a) and Federal Rule of Criminal Procedure 41. Essentially, he
claimed that the judge in Virginia lacked authority to issue a warrant that
extended to a computer in San Antonio.
      After a hearing in the Western District of Texas, the district court denied
Torres’s motion. The district court concluded that although the magistrate
judge exceeded her authority, suppression was inappropriate. The court
reasoned that the FBI agents who executed the search relied in good faith on
the defective search warrant, so the good-faith exception to the exclusionary
rule applied.
      Torres then entered an unconditional guilty plea (with no plea
agreement), and the district court sentenced him to two concurrent 151-month
terms of imprisonment.
                                       2
    Case: 17-50400     Document: 00514683766      Page: 3    Date Filed: 10/16/2018



                                  No. 17-50400
                                         II
      We held in United States v. Coil that “[a]n unconditional guilty plea
waives all non-jurisdictional defects in the trial court proceedings.” 442 F.3d
912, 914 (5th Cir. 2006); see Tollett v. Henderson, 411 U.S. 258, 267 (1973)
(“When 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.”). Hence, Torres waived the right
to challenge the district court’s suppression ruling. United States v. Wise, 179
F.3d 184, 186 (5th Cir. 1999) (“When a trial court denies a motion to suppress
evidence and the defendant subsequently enters an unconditional plea of
guilty, the defendant has waived the right to raise further objection to that
evidence.” (citation omitted)); see United States v. Cothran, 302 F.3d 279, 286
(5th Cir. 2002) (“A guilty plea . . . eliminates objections to searches and seizures
that violate the Fourth Amendment” (citations omitted)); see also Sealed
Appellant, 526 F.3d at 242–43 (recognizing that an unconditional guilty plea
waives the right to challenge a trial court’s suppression ruling); Coil, 442 F.3d
at 914 (“An erroneous pretrial ruling is a non-jurisdictional defect that is
waived by an unconditional guilty plea.”); cf. FED. R. CRIM. P. 11(a)(2) (“[A]
defendant may enter a conditional plea of guilty . . . , reserving in writing the
right to have an appellate court review an adverse determination of a specified
pretrial motion.” (emphasis added)).
      Recently, the Supreme Court in Class v. United States, 138 S. Ct. 798
(2018), addressed how an unconditional guilty plea affects a defendant’s ability
to raise constitutional challenges on appeal. The Court held that an
unconditional guilty plea does not “by itself bar[] a federal criminal defendant
from challenging the constitutionality of the statute of conviction on direct
appeal.” Class, 138 S. Ct. at 803. Although the Court provided “no clear
                                         3
    Case: 17-50400    Document: 00514683766     Page: 4   Date Filed: 10/16/2018



                                 No. 17-50400
answer” to what “claims . . . a defendant can raise on appeal after entering an
unconditional guilty plea,” id. at 807 (Alito, J., dissenting) (emphasis added),
the Court did not disturb its caselaw dictating that a defendant who entered
an unconditional guilty plea may not raise a Fourth Amendment challenge.
      To that end, the Court recognized that “a guilty plea does implicitly
waive some claims, including some constitutional claims.” Class, 138 S. Ct. at
805. Most important, “[a] valid guilty plea also renders irrelevant—and
thereby prevents the defendant from appealing—the constitutionality of case-
related government conduct that takes place before the plea is entered.” Id. In
support, the Court relied on its previous decision in Haring v. Prosise that “a
valid guilty plea ‘results in the defendant’s loss of any meaningful opportunity
he might otherwise have had to challenge the admissibility of evidence
obtained in violation of the Fourth Amendment.’” Id. (quoting Haring v.
Prosise, 462 U.S. 306, 320 (1983)). So under Class, Torres may not raise a
Fourth Amendment challenge on appeal, given his voluntary unconditional
guilty plea. See United States v. Tineo-Gonzalez, 893 F.3d 64, 66 (1st Cir. 2018)
(recognizing post-Class that “[b]y pleading guilty at trial, [the defendant]
waived his right to challenge the denial of a motion to suppress”).
      Torres tries to sidestep this barrier by claiming that he is not raising a
Fourth Amendment challenge; instead, he is challenging the magistrate
judge’s jurisdiction to issue the NIT warrant. Torres cites no caselaw
supporting this distinction and, regardless, we do not find the distinction
persuasive. Torres challenged the validity of the Government’s search, and he
requested that evidence be suppressed. Such a challenge sounds in the Fourth
Amendment; it is the type of pre-plea, case-related government conduct that a
defendant may not challenge on appeal following an unconditional guilty plea.
See Class, 138 S. Ct. at 805. “[H]is contention does not implicate the


                                       4
    Case: 17-50400     Document: 00514683766      Page: 5   Date Filed: 10/16/2018



                                  No. 17-50400
jurisdiction of the district court to accept his unconditional guilty plea.” Sealed
Appellant, 526 F.3d at 243.
      In sum, Torres “waived the right [to challenge the suppression motion]
by entering an unconditional guilty plea . . . .” Coil, 442 F.3d at 915.
                                                                    DISMISSED.




                                        5
