U.S.A. v. Herrera, 00-5251

• Decision Date: 22 March 2001
• Docket Number: No. 00-5251,00-5251
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Francisco Javier Herrera, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 349

265 F.3d 349 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Francisco Javier Herrera, Defendant-Appellant.

No. 00-5251

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: March 22, 2001

Decided and Filed: September 6, 2001

Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 99-20186, Bernice B. Donald, District Judge.

Tracy L. Berry, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.

Ralph A. Sivilla, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant.

Before: RYAN and BATCHELDER, Circuit Judges; LAWSON, District Judge^*.

OPINION

RYAN, Circuit Judge.

The defendant, Francisco Javier Herrera, pled guilty to charges of: (1) illegal entry after previous deportation, in violation of 8 U.S.C. § 1326(a), (b)(2), and (2) illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5). He was sentenced to 92 months' imprisonment. Herrera now appeals the pre-guilty-plea decision of the district court, denying his motion to suppress evidence found in his vehicle, and the sentencing phase decision to deny Herrera's request to group his charged offenses together for sentencing purposes. We affirm the district court's judgment.

I.

Herrera was born in Mexico, but admits to being deported six times from the United States. On July 27, 1999, Herrera was found back in the United States during a vehicle traffic stop by a member of the Memphis Police Department, Officer Gary McCord. McCord testified that when he stopped Herrera for speeding and approached the vehicle, he noticed that Herrera "was doing a lot of moving around up there and [he] didn't know what [Herrera] was doing."

McCord took Herrera's driver's license and the car registration and then placed him in the back seat of the police vehicle. After walking around Herrera's vehicle, McCord asked Herrera for consent to search the car and Herrera gave the officer permission because he "had nothing to conceal."

While searching the car, McCord discovered a Jennings firearm, Model Bryco 59, .380 caliber pistol. After learning that Herrera had been previously deported from the United States, Officer McCord contacted Immigration and Naturalization Service officials. They discovered that the social security card Herrera was carrying was not valid.

On August 8, 1999, Herrera was arrested and on August 18, a federal grand jury returned a four-count indictment against him. Herrera moved to suppress the evidence found in his vehicle and after a hearing on October 20, 1999, the district court denied the motion.

A month later, Herrera pled guilty to two charges: (1)illegal entry after previous deportation, in violation of 8U.S.C. § 1326(a), (b)(2); and (2) illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5). On February 18, 2000, the district court conducted a sentencing hearing at which Herrera objected to the failure of the probation officer to group the counts of conviction. The district court overruled the objection and Herrera was sentenced to 92 months' imprisonment. This appeal followed.

II.

"On review of motions to suppress evidence, findings of fact will be upheld unless clearly erroneous; however, a district court's conclusions of law are reviewed de novo." United States v. Duncan, 918 F.2d 647, 650 (6th Cir. 1990).

The factual findings of the district court in relation to application of the Sentencing Guidelines are reviewed under the clearly erroneous standard. United States v. Latouf, 132 F.3d 320, 331 (6th Cir. 1997). A finding of fact will be considered clearly erroneous only when the reviewing court, upon review of the whole record, finds it has a definite and firm conviction that a mistake has been made. Id. Legal conclusions of the district court are reviewed de novo. Id.

III.

It is elemental that a guilty pleading defendant may not appeal an adverse pre-plea ruling on a suppression of evidence motion unless he has preserved the right to do so by entering a conditional plea of guilty in compliance with Fed. R. Crim. P. 11(a)(2), which states:

(2) Conditional Pleas. With the approval of the court and the consent of the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.

We believe that it is important to note in passing that the plea agreement made under subparagraph (e) of Rule 11 need not be in writing, although a written agreement is the preferred practice. Conditional guilty pleas, however, represent an exception to the general rule that a guilty plea waives all non-jurisdictional defects in the pre-plea proceedings. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). Accordingly, this "special" plea carries with it the special requirement that it be "in writing" so that a precise record can be made both of the fact of the government's consent and the "specified pretrial motion," Rule 11(a)(2), which the defendant reserves the right to challenge.

It is undisputed that Herrera's written plea agreement does not contain any language that Herrera reserved the right to appeal this issue or any indication that the government consented to a conditional plea. The agreement does state that "[t]his Plea Agreement constitutes the entire agreement between the parties and the parties agree that any issues not specifically addressed by this Plea Agreement shall be resolved by the Court in accordance with the applicable statutes, guidelines, rules, and case law." Thus, the government argues, pursuant to the plain language of Rule 11, Herrera has waived his right to appeal the Fourth Amendment issue.

Herrera argues that he may appeal this issue because he intended to offer a conditional plea and thought he had done so based on two things that occurred at the plea hearing. First, at the hearing, Herrera's counsel stated that this was, in fact, a conditional plea. Second, the district court stated at the sentencing hearing, "Mr. Herrera, [defense counsel] raised those arguments at the suppression hearing and he argued that...