United States v. Roger Olson, II , 849 F.3d 230 ( 2017 )

Case: 16-10507 Document: 00513881665 Page: 1 Date Filed: 02/20/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-10507
Fifth Circuit
Summary Calendar
FILED
February 20, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
ROGER HARRY OLSON, II,
Defendant–Appellant.
Appeals from the United States District Court
for the Northern District of Texas
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
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No. 16-10507
§ 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 FED. R. CRIM. 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
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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.
Ford, 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
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actually or constructively possess the controlled substance or to intend to dis-
tribute it. Ford, 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.
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