                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0716n.06

                                            No. 08-3183

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                          FILED
UNITED STATES OF AMERICA,                          )                                  Nov 04, 2009
                                                   )                             LEONARD GREEN, Clerk
        Plaintiff-Appellee,                        )
                                                   )
v.                                                 )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
ANTHONY STANLEY,                                   )    NORTHERN DISTRICT OF OHIO
                                                   )
        Defendant-Appellant.                       )
                                                   )

Before: GILMAN and GRIFFIN, Circuit Judges; and STEEH, District Judge.*

        GEORGE CARAM STEEH, District Judge.

        Appellant Anthony Stanley pleaded guilty to one count of distributing 50 grams or more of

cocaine base ("crack cocaine"), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), one count of

possessing 50 grams or more of crack cocaine with intent to distribute, in violation of 21 U.S.C. §

841(a)(1) and (b)(1)(A), and one count of felon in possession of a weapon, in violation of 18 U.S.C.

§ 922(g). In his written plea agreement, Stanley waived certain appellate rights and preserved others.

Stanley appeals the denial of his motion to suppress and claims that the district court denied his right

to confront a police-officer witness at the suppression hearing by limiting cross-examination. Also,

Stanley appeals his sentence, arguing he was denied due process of law because the district court



        *
       The Honorable George Caram Steeh, United States District Judge for the Eastern District
of Michigan, sitting by designation.

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No. 09-3183
United States v. Stanley

failed to properly consider Sentencing Guidelines Amendments that reduced the guideline levels for

crimes involving crack cocaine. Because some of Stanley's claims on appeal were waived at the

time of his plea, and all of them lack merit, we affirm.

                                I. Waiver of Appeal of Sentence

       Initially, we address whether the sentencing issue Stanley raises on appeal was waived as part

of his plea agreement. "It is well settled that a defendant in a criminal case may waive any right,

even a constitutional right, by means of a plea agreement." United States v. McGilvery, 403 F.3d

361, 362 (6th Cir. 2005) (citation omitted). Criminal defendants "may waive their right to appeal

as part of a plea agreement so long as the waiver is made knowingly and voluntarily." United States

v. Swanberg, 370 F.3d 622, 625 (6th Cir. 2004).

       Courts interpret plea agreements according to traditional principles of contract law. United

States v. Lukse, 286 F.3d 906, 909 (6th Cir. 2002). During the plea hearing, the district court

confirmed that Stanley understood the charges against him, the maximum penalties that he could

receive, and that he would be subject to a mandatory minimum sentence of 240 months if the court

agreed with the Government's sentencing position. The district court reviewed with Stanley the

rights he was giving up by pleading guilty, including the appellate waiver contained in the plea

agreement. Thereafter, the district court concluded on the record that Stanley had read and signed

the plea agreement, that the plea agreement contained all of the agreement's terms, and that Stanley

had voluntarily entered into the agreement. Consistent with the record developed by the district

court and the express language of the waiver section of the plea agreement, Stanley voluntarily and

knowingly agreed to waive his right to appeal except "any sentence to the extent it exceeds the

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No. 09-3183
United States v. Stanley

maximum of the sentencing range determined under the advisory Sentencing Guidelines in

accordance with the sentencing stipulations and computations" in the plea agreement. See

Swanberg, 370 F.3d at 626.

       The Government filed an information pursuant to 21 U.S.C. § 851 to establish that Stanley

had a prior felony drug conviction. By operation of 21 U.S.C. § 841(b)(1)(A), this prior conviction

increased Stanley's mandatory minimum sentence from 10 to 20 years. During the sentencing

hearing, the district court recognized that recent Sentencing Guideline Amendments relative to crack

cocaine reduced the starting-point base offense level for Stanley from 32 to 30, but reasoned that the

§ 841(b)(1)(A) statutory enhancement of the minimum sentence from 10 to 20 years essentially

nullified this base offense level reduction because the statutory minimum sentence was greater than

the maximum sentence under the Sentencing Guidelines range that would otherwise apply. Stanley

was sentenced to the statutory minimum 240 months on both drugs counts, and 120 months on the

weapons conviction, with all sentences to run concurrently.

       On appeal, Stanley claims the district court exceeded the Guidelines range in light of the

recent Sentencing Guideline Amendments relative to crack cocaine. Contrary to Stanley’s argument,

his statutory minimum 240-month sentence is a guidelines sentence by operation of U.S.S.G. §

5G1.1(b), which provides that, "[w]here a statutorily required minimum sentence is greater than the

maximum of the applicable guideline range, the statutorily required minimum sentence shall be the

guideline sentence." Defendant’s reliance on United States v. Gunter, 462 F.3d 237 (3d. Cir. 2006),

is misplaced in that Gunter was sentenced above the statutory minimum; here, the defendant was not.



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No. 09-3183
United States v. Stanley

Because Stanley received a sentence within the guidelines, he waived the right to challenge in the

Rule 11 plea agreement he entered.

                        II. The Suppression Motion was Properly Denied

       As permitted by his plea agreement, Stanley also challenges the court's denial of his motion

to suppress the cocaine and the handgun seized from his home, arguing on appeal that the police did

not have valid consent to search the residence, that the district court erred in applying the plain-view

doctrine, and the district court erred in applying the "knock and announce" rule. "In reviewing a

district court's suppression determinations, this Court reviews findings of fact for clear error, and

legal conclusions de novo." United States v. Lawrence, 308 F.3d 623, 626-27 (6th Cir. 2002)

(quoting United States v. Ivy, 165 F.3d 397, 401 (6th Cir. 1998)).

                                             A. Consent

       Stanley argues that the district court erred by ruling that his girlfriend Foster validly

consented to the search of the apartment. Without citing supporting precedent, Stanley argues that

because he was present at the apartment and the subject of the arrest warrant, the officers should

have tried to obtain his consent before asking Foster for her consent. Stanley also argues, again

without supporting authority, that because he invoked his Miranda rights, his refusal to speak with

the officers was the functional equivalent of an expressed non-consent. Stanley's reliance on

Georgia v. Randolph, 547 U.S. 103 (2006), and United States v. Murphy, 516 F.3d 1117 (9th Cir.

2008), is misplaced because both cases involved defendants who expressly refused to consent,

followed by a third-party who later gave consent to search. The Supreme Court stated that a

"warrantless search of a shared dwelling for evidence over the express refusal of consent by a

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No. 09-3183
United States v. Stanley

physically present resident cannot be justified as reasonable as to him on the basis of consent given

to the police by another resident." Randolph, 547 U.S. at 120 (emphasis added).

       Stanley did not refuse consent to search the apartment. Stanley admits he was present in the

apartment when Foster gave her consent to search. Stanley did not object after Foster gave her

consent. Again, Stanley cites no authority, and we are unaware of any, that supports Stanley's

assertion that the invocation of Miranda rights constitutes an express refusal of consent to search.

The district court did not err in ruling that Foster's consent to the search gave the officers legal

authority to search the apartment. See Lawrence, 308 F.3d at 626-627.

                                            B. Plain View

       The plain-view doctrine is an exception to the general rule that an officer must have a warrant

in order to seize personal property. Horton v. California, 496 U.S. 128, 134 (1990). If an officer

"did not violate the Fourth Amendment in arriving at the place from which the evidence could be

plainly viewed," and the item was "in plain view" and "its incriminating character" was "immediately

apparent," the officer may seize the evidence without a warrant under the "plain view" doctrine. Id.

at 136 (citation omitted). Officers may not manipulate an object to determine whether it is

contraband; instead, it must be immediately apparent that the object is contraband. E.g., Arizona v.

Hicks, 480 U.S. 321, 326-27 (1987).

       An arrest warrant allows officers to enter the suspect’s home if there is "reason to believe"

that the suspect is within the home. Payton v. New York, 445 U.S. 573, 603 (U.S. 1980). Here, the

district court correctly found that the drugs were properly seized pursuant to the plain-view doctrine.

The officers had an arrest warrant authorizing Stanley's arrest. Officer Dancy's surveillance

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United States v. Stanley

demonstrated that Stanley frequently stayed overnight in the apartment. The night before the officers

executed the warrant, Dancy observed Stanley arrive at the house in his vehicle. Stanley's vehicle

was still at the residence when the officers executed the warrant the next morning. The district court

did not commit clear error in finding that the officers had "reason to believe" that Stanley was in the

apartment, thus giving them the right to lawfully enter his apartment. See Payton, 445 U.S. at 603;

Lawrence, 308 F.3d at 626-27.

       The district court also determined that, once the officers were lawfully inside, the "Crown

Royal" bag was open, and the marijuana inside the glass vials was "plainly visible" and "obviously

identifiable." These factual findings are supported by the record, and are not clearly erroneous.

Lawrence, 308 F.3d at 626-27. Detective Arriza testified that he could see the vials lying

horizontally in the open bag, and that he immediately identified the substance inside the vials as

marijuana. See United States v. McLevain, 310 F.3d. 434, 441 (4th Cir. 2002) (noting that items

such as marijuana or cocaine on a table in plain sight are immediately recognizable as contraband).

       The district court did not err in ruling that the marijuana was lawfully seized under the "plain

view" doctrine. Horton, 496 U.S. at 134; Lawrence, 308 F.3d at 626-627. Once the officers lawfully

seized the marijuana filled vials from the open "Crown Royal" bag, the officers likewise lawfully

seized the small bags of crack cocaine situated directly underneath the vials. Horton, 496 U.S. at

134. Detective Arriza testified that he immediately recognized the items as crack cocaine, which was

obviously identifiable as contraband. Id.; McLevain, 310 F.3d. at 441; Lawrence, 308 F.3d at 626-

27.

                                      C. Knock and Announce

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No. 09-3183
United States v. Stanley

       Stanley raises on appeal what he characterizes as a "knock and announce" argument, asserting

that the district court erred when relying on Hudson v. Michigan, 547 U.S. 586 (2006), in denying

his motion to suppress. The "knock and announce" argument is without merit. The district judge

held that the officers were permitted to forcibly enter the apartment pursuant to their arrest warrant

and their reasonable belief that Stanley was inside the apartment, citing Payton, 445 U.S. at 590, and

United States v. Wickizer, 633 F.2d 900, 902 (6th Cir. 1980). Furthermore, the district court found

that the officers knocked and announced themselves at the outside door, forcing open the door only

after waiting a reasonable amount of time with no response. Stanley has not shown that the district

court erred when it found that there was no knock and announce violation. Stanley's reliance on

United States v. Hardin, 539 F.3d 404, 424 (6th Cir. 2008), for the proposition that Payton and

United States v. Pruitt, 458 F.3d 477 (6th Cir. 2006), cert. denied, 127 S.Ct. 1814 (2007), "require[]

at a minimum that the officers have a reasonable belief that the subject of the arrest warrant is within

the residence at that time" supports the district court's conclusion. Pruitt, 458 F.3d at 483 (internal

quotations marks and emphasis omitted).

 III. The District Court Properly Sustained an Objection during the Suppression Hearing

       "[T]rial judges retain 'wide latitude' to impose 'reasonable limits on cross-examination.'"

United States v. Holden, 557 F.3d 698, 704 (6th Cir. 2009) (quoting Delaware v. Van Arsdall, 475

U.S. 673, 679 (1986)). A district court's decision to exclude evidence is reviewed for an abuse of

discretion. United States v. Lucas, 357 F.3d 599, 608 (6th Cir. 2004). Stanley argues that the district

court improperly limited his right to cross-examine Officer Dancy during the suppression hearing,

denying his right to confront Officer Dancy and thereby excluding otherwise admissible evidence.

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No. 09-3183
United States v. Stanley

By the time the district court sustained the "asked and answered" objection, however, the issue of

whether Officer Dancy had asked Stanley anything before he admitted ownership of the drugs and

the gun had been thoroughly addressed. The district court did not improperly apply the law or abuse

its discretion by reasonably limiting Officer Dancy's cross-examination. Holden, 557 F.3d at 704.

Stanley was therefore not denied his right to confront Officer Dancy at the suppression hearing.

                                         IV. Conclusion

       For the reasons stated, we affirm the judgment and the sentence of the district court.




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