                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 23, 2003

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 02-50306
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JOHN WALTER CASTRO, JR.,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. P-01-CR-261-1
                       --------------------

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     John Walter Castro, Jr. appeals his conviction for

possession with intent to distribute 100 kilograms or more but

less than 1,000 kilograms of marijuana and aiding and abetting in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.       He argues

that the district court erred in denying his motion to withdraw

his guilty plea based upon an intervening district court decision

that he asserts rendered his claim of unlawful search and seizure

more viable.

     *
        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that this opinion should not be published and is not precedent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.
                             No. 02-50306
                                  -2-

     The protection against illegal searches and seizures is a

nonjurisdictional defect in the proceedings before the district

court that is waived by the entry of an unconditional, knowing,

and voluntary guilty plea.    United States v. Smallwood, 920 F.2d

1231, 1240 (5th Cir. 1991).    This is not a case “where

intervening law has established that a defendant’s actions do not

constitute a crime and thus that the defendant is actually

innocent of the charged offense,” thereby justifying an exception

to this rule.    United States v. Andrade, 83 F.3d 729, 731 (5th

Cir. 1996).   Castro has failed to carry his burden of proving

that he is entitled to withdraw his guilty plea.    See United

States v. Brewster, 137 F.3d 853, 857-58 (5th Cir. 1998).

     Therefore, under the totality of the circumstances, the

district court did not abuse its discretion in denying Castro’s

motion to withdraw his guilty plea.    See id.

     AFFIRMED.
