                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               September 29, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-11133
                           Summary Calendar



UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

FREDRICK LAMONT GUINYARD

                     Defendant - Appellant

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                   USDC No. 3:03-CR-293-ALL-G
                      --------------------

Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*

     Fredrick Lamont Guinyard appeals his conditional guilty plea

to possession with intent to distribute crack cocaine and

possession of a firearm during a drug-trafficking crime.        He

first argues that the district court erred in denying his motion

to suppress.   Guinyard avers that the drugs and firearm seized as

a result of the search of a residence where he was staying were

suppressible because the officers did not have a search warrant

and because the drugs were not in plain view at the time that the


     *
       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this opinion should not be published and is not precedent except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. 04-11133
                                -2-

officers breached the curtilage of the residence.   Guinyard also

avers that the officers manufactured the exigent circumstances

that caused them to enter the residence without a warrant,

thereby causing the exigent-circumstance exception to the warrant

requirement to be inapplicable.

     A district court’s ruling on a motion to suppress based upon

live testimony at a suppression hearing is accepted unless

clearly erroneous or influenced by an incorrect view of the law.

United States v. Foy, 28 F.3d 464, 474 (5th Cir. 1994); United

States v. Laury, 985 F.2d 1293, 1314 (5th Cir. 1993).   Viewing

the evidence in the light most favorable to the Government, we

conclude that the district court did not err in finding that the

officers did not breach the curtilage of the home as they

approached the home and stood around the front door to conduct

the “knock and talk.”   United States v. Thomas, 120 F.3d 564, 571

(5th Cir. 1997).

     Nor do we find any merit in Guinyard’s argument that the

police officers manufactured the exigent circumstances which

caused the officers to enter the house without a warrant.    The

occupants, not the officers, caused the exigent circumstances by

opening the window revealing the drugs in plain view to anyone

standing outside the residence and by shouting out “5-0.”     See

United States v. Rico, 51 F.3d 495, 506 (5th Cir. 1995).     The

officers’ subsequent entry into the house was justified to ensure

their safety and to prevent destruction of the drugs they
                            No. 04-11133
                                 -3-

observed through the window.     United States v. Jones, 239 F.3d

716, 722 (5th Cir. 2001).

     Guinyard avers next that the district court committed

reversible error when it sentenced him pursuant to the mandatory

United States Sentencing Guidelines system held unconstitutional

in United States v. Booker, 125 S. Ct. 738 (2005).    Guinyard’s

plea agreement contained a waiver-of-appeal provision by which he

waived, inter alia, “the right to appeal the sentence imposed or

the manner in which it was determined,” except for a sentence

above the statutory maximum or an upward departure from the

applicable Guidelines range.

     A defendant may waive his statutory right to appeal as part

of a plea agreement.   United States v. Melancon, 972 F.2d 566,

567 (5th Cir. 1992).   This court reviews de novo whether an

appeal waiver prevents an appeal.     United States v. Baymon, 312

F.3d 725, 727 (5th Cir. 2002).    To make this determination, this

court conducts a two-step inquiry, asking (1) “whether the waiver

was knowing and voluntary,” and (2) “whether the waiver applies

to the circumstances at hand, based on the plain language of the

agreement.”   United States v. Bond, __ F.3d __, 2005 WL 1459641

at *2 (5th Cir. June 21, 2005).

     The record reflects that Guinyard knowingly waived his right

to appeal his sentence.   The district court specifically

referenced the appeal-waiver provision at the rearraignment

hearing and advised Guinyard that he waived his right to appeal
                           No. 04-11133
                                -4-

except on certain limited grounds.   Guinyard stated that he

understood the appeal-waiver clause.   The fact that Booker was

decided after Guinyard entered his guilty plea does not

invalidate the plea.   See Brady v. United States, 397 U.S. 742,

757 (1970); United States v. Bradley, 400 F.3d 459, 464 (6th Cir.

2005), petition for cert. filed (June 9, 2005) (No. 04-10620).

Thus, the appeal waiver precludes review of Guinyard’s Booker

claim.   See Bond, 2005 WL 1459641 at *2-3; United States v.

Cortez, __ F.3d __, 2005 WL 1404944 at *1 (5th Cir. June 16,

2005); United States v. McKinney, 406 F.3d 744, 746-47 (5th Cir.

2005).   The judgment of the district court is AFFIRMED.
