United States v. Adrian Butts

MEMORANDUM **

Adrian Butts appeals his conviction and 157 month sentence, following his guilty pleas to possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(A)(viii), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924 (c). Butts pleaded guilty pursuant to a written, unconditional plea agreement. On appeal, Butts challenges the district court’s denial of his motion to suppress and the reasonableness of his sentence. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Pursuant to an arrest warrant, law enforcement officers searched Butts’s residence for his sister, Hazel, a parolee-at-large. During that search, the officers entered a room in which they found evidence that illegal drugs were present. After obtaining a search warrant, the officers found various drugs and a firearm. Butts moved to suppress those items, arguing on various grounds that the search was illegal. The district court denied suppression.

Butts then pleaded guilty to Counts Three and Six of the superseding indict *219 ment. The plea agreement states, “By pleading guilty, defendant also gives up any…

concurring:

In my view, the written plea agreement did not waive Butts’s right to appeal his Fourth Amendment claim. The majority relies on the following sentence in the plea agreement in support of its holding: “By pleading guilty, defendant also gives up any and all rights to pursue any affirmative defenses, Fourth Amendment or Fifth Amendment claims, and other pretrial motions that have been filed or could have been filed.” That sentence appears in the section of the plea agreement entitled “WAIVER OF CONSTITUTIONAL RIGHTS.” It does not appear in the section of the plea agreement entitled “LIMITED MUTUAL WAIVER OF APPEAL AND COLLATERAL ATTACK.” In context, the quoted sentence is an agreement not to “pursue” a “Fourth Amendment claim[ ]” in the district court. It is not an agreement to waive the right to appeal the *220 already rendered ruling by the district court on Butts’s suppression motion.

However, I would affirm the district court’s ruling on Butts’s Fourth Amendment claim on the merits. The search warrant for Butts’s sister was valid. The police had reason to believe that she was in the house despite Butts’s denial. Because they had reason to believe she was in the…

FILED

NOT FOR PUBLICATION DEC 20 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-50210

Plaintiff - Appellee, D.C. No. 5:07-cr-00126-VAP-1

v.

MEMORANDUM *

ADRIAN BUTTS,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding

Argued and Submitted October 7, 2010 Pasadena, California

Before: WARDLAW and W. FLETCHER, Circuit Judges, and LYNN,** District Judge.

Adrian Butts appeals his conviction and 157 month sentence, following his

guilty pleas to possession with intent to distribute methamphetamine, in violation

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Barbara M. Lynn, U.S. District Judge for the Northern District of Texas, sitting by designation.

1 of 21 U.S.C. y 841(a)(1) and (b)(1)(A)(viii), and possession of a firearm in

furtherance of a drug trafficµing crime,…