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United States v. Roger Olson, II
849 F.3d 230
| 5th Cir. | 2017
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Case Information

*1 Before JOLLY, SMITH, and GRAVES, Circuit Judges.

PER CURIAM:

After the denial of his motion to suppress, Roger Olson, II, pleaded guilty of possession with intent to distribute fifty grams or more of methampheta- mine and possession with intent to distribute gamma hydroxybutyric acid. On appeal, Olson challenges the denial of his motion to suppress and the application of the career-offender guideline, U.S. Sentencing Guidelines *2 § 4B1.1, based on his two convictions of possession for sale of methampheta- mine in violation of California Health & Safety Code § 11378.

By pleading guilty voluntarily and unconditionally, a criminal defendant waives his right to challenge any nonjurisdictional defects in the criminal pro- ceedings that occurred before the plea. United States v. Stevens , 487 F.3d 232, 238 (5th Cir. 2007). This waiver includes the right to raise any further objec- tions based on the denial of a motion to suppress. Id .

Though a defendant may enter into a conditional guilty plea preserving the right to appeal pretrial rulings, the plea must be in writing and designate the particular issues that are preserved for appeal; the government must con- sent to it; and the district court must approve it. United States v. Wise , 179 F.3d 184, 186–87 (5th Cir. 1999); see F ED R. C RIM . P. 11(a)(2); Stevens , 487 F.3d at 238. A conditional guilty plea may not be implied. Wise , 179 F.3d at 186.

We have excused variances from these technical requirements where “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 government 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. That is not the situation here.

The parties did not enter into a written plea agreement. Moreover, the record contains no suggestion that Olson intended to plead guilty conditionally, that he expressed an intent to appeal the suppression ruling, or that the gov- ernment and the court assented to a conditional plea. Finally, Olson does not contend, and it is not apparent from the transcript of his rearraignment hearing, that his plea was involuntary. By entering a voluntary, unconditional *3 plea of guilty, he therefore waived the right to challenge the denial of the motion to suppress.

Olson contends that a conviction under § 11378 does not qualify as a controlled-substance offense under § 4B1.1 because it criminalizes an offer to sell a controlled substance. A defendant is a career offender for purposes of the guidelines if, among other things, the conviction for which he is being sen- tenced is a felony crime of violence (“COV”) or controlled-substance offense and he has at least two felony convictions for either a COV or a controlled- substance offense. § 4B1.1(a); see also U.S.S.G. § 4B1.2 (defining the terms in § 4B1.1). In relevant part, § 4B1.2(b) defines a controlled-substance offense as “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits . . . the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.”

In United States v. Castellon-Aragon , 772 F.3d 1023, 1024 (5th Cir. 2014), we held that possession of methamphetamine for sale, in violation of § 11378, is a drug-trafficking offense under U.S.S.G. § 2L1.2. We cited United States v. Valle-Montalbo , 474 F.3d 1197, 1201 (9th Cir. 2007), which concluded that “[b]oth the plain text of Health & Safety Code § 11378, and California case law confirm that § 11378 only criminalizes possession of dangerous drugs with the intent to sell them.” Valle-Montalbo , 474 F.3d at 1201. Possession of a controlled substance with the intent to sell, deliver or, distribute it plainly qualifies as a controlled-substance offense under § 4B1.1. See United States v. , 509 F.3d 714, 716-17 (5th Cir. 2007), abrogated on other grounds by United States v. Tanksley , No. 15-11078, 2017 U.S. App. LEXIS 913, at *8 (5th Cir. Jan. 18, 2017) (on petition for rehearing). An offer to sell a controlled substance, on the other hand, does not necessarily require the defendant to *4 actually or constructively possess the controlled substance or to intend to dis- tribute it. , 509 F.3d at 716–17

Thus, Olson’s theory that § 11378 criminalizes offers to sell a controlled substance is without merit, because a conviction under § 11378 requires proof of actual or constructive possession of a controlled substance and the intent to sell it. Accordingly, the district court properly applied the career-offender enhancement based on Olson’s two convictions of possession of methampheta- mine for sale.

AFFIRMED.

Case Details

Case Name: United States v. Roger Olson, II
Court Name: Court of Appeals for the Fifth Circuit
Date Published: Feb 20, 2017
Citation: 849 F.3d 230
Docket Number: 16-10507 Summary Calendar
Court Abbreviation: 5th Cir.
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