     Case: 15-50885       Document: 00513725155         Page: 1     Date Filed: 10/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                     No. 15-50885                                FILED
                                   Summary Calendar                       October 19, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CHRISTINA YVONNE VARELA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:14-CR-2248-2


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Without the benefit of a plea agreement, Christina Yvonne Varela pleaded
guilty to conspiracy and possession, with the intent to distribute, at least 50
kilograms of marijuana, in violation of 21 U.S.C. §§ 841 and 846. She was
sentenced to 37 months’ imprisonment. She now appeals the denial of her
motion to suppress evidence found during a warrantless search of her home,
challenging the court’s determination she consented to the search. But, as


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 15-50885    Document: 00513725155     Page: 2   Date Filed: 10/19/2016


                                 No. 15-50885

discussed below, by pleading guilty voluntarily and unconditionally, Varela
waived her right to challenge on appeal any non-jurisdictional defects in the
criminal proceedings that occurred before the plea, including the denial of her
motion to suppress. See United States v. Stevens, 487 F.3d 232, 238 (5th Cir.
2007); United States v. Wise, 179 F.3d 184, 186 (5th Cir. 1999).
      Varela contends the court erroneously denied her motion to suppress
evidence seized by Drug Enforcement Agency Agents in 2014 during a
warrantless search of her home because she did not give consent. The Agents
followed a tracking device, hidden in marijuana found in the trunk of a vehicle
near El Paso, Texas, to Varela’s home. The Government contends the agents
conducted a “knock-and-talk” to gain consent to enter and search; Varela
asserts consent was not properly obtained. Nowhere in her brief, however,
does she address how this issue was preserved after entry of her guilty plea,
nor did she file any reply to the Government’s response brief’s asserting all
non-jurisdictional objections were waived.
      A defendant may enter a conditional guilty plea “[w]ith the consent of
the court and the government . . . 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). “A variance from the requirements of this rule is
harmless error if it does not affect substantial rights.” Fed. R. Crim. P. 11(h).
A conditional plea, however, may not be implied, but a variance may be excused
when “the record clearly indicates that the defendant intended to enter a
conditional guilty plea, that the defendant expressed the intention to appeal a
particular pretrial ruling, and that neither the [G]overnment nor the district
court opposed such a plea”. Stevens, 487 F.3d at 238 (internal quotation marks
and citation omitted); see Wise, 179 F.3d at 187.




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                                 No. 15-50885

      Varela indicated at the plea-entry hearing her disagreement with the
Government’s recitation of the factual basis for her guilt because it stated the
search was conducted subject to consent. The record, however, contains no
suggestion, written or otherwise, either that Varela intended to plead guilty
conditionally, or that the Government and the court were not opposed to a
conditional plea; and, although her lawyer perhaps attempted to preserve the
suppression issue “[i]f she decides to appeal”, Varela did not express an intent
to do so. See Fed. R. Crim. P. 11(a)(2); Stevens, 487 F.3d at 240; Wise, 179 F.3d
at 186-87.
      AFFIRMED.




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