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[DO NOT PUBLISH]
`
`IN THE UNITED STATES COURT OF APPEALS
` FILED
`FOR THE ELEVENTH CIRCUIT
` U.S. COURT OF APPEALS
`________________________
` ELEVENTH CIRCUIT
` June 8, 2005
` THOMAS K. KAHN
` CLERK
`
`No. 04-12183
`Non-Argument Calendar
`________________________
`
`D. C. Docket No. 03-00274-CR-T-27-TBM
`
`UNITED STATES OF AMERICA,
`
`
`
`
`
`JIMMY LEE WHITE,
`
`
`versus
`
`Plaintiff-Appellee,
`
` Defendant-Appellant.
`
`________________________
`
`Appeal from the United States District Court
`for the Middle District of Florida
`_________________________
`
`(June 8, 2005)
`
`Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
`
`PER CURIAM:
`
`Jimmy Lee White appeals his conviction and sentences for possession with
`
`intent to distribute five grams or more of cocaine base (crack cocaine), 21 U.S.C.
`
`

`
`§ 841(a)(1) & (b)(1)(B)(iii); possession with intent to distribute cocaine, 21 U.S.C.
`
`§ 841(a)(1) & (b)(1)(C); and possession with intent to distribute marijuana, 21
`
`U.S.C. § 841(a)(1) & (b)(1)(D). After the district court denied his motion to
`
`suppress certain statements he had made to law enforcement, White pleaded guilty
`
`to all charges. White did not at any time reserve a right to appeal the denial of the
`
`motion to suppress. On appeal, White raises three issues, which will be discussed
`
`in turn.
`
`First, White argues that the district court erred in denying his motion to
`
`suppress his statements because the statements were obtained in violation of his
`
`Fifth Amendment right to remain silent. He contends that, after he invoked his
`
`right to remain silent, law enforcement resumed interrogation without
`
`“scrupulously honoring” his previous exercise of his right to remain silent.
`
`When a defendant knowingly and voluntarily enters an unconditional guilty
`
`plea, he waives all non-jurisdictional defects in his court proceedings. United
`
`States v. Patti, 337 F.3d 1317, 1320 (11th Cir. 2003), cert. denied, 124 S.Ct. 1146
`
`(2004). A district court’s refusal to suppress evidence is non-jurisdictional and is
`
`waived by a guilty plea. United States v. McCoy, 477 F.2d 550, 551 (5th Cir.
`
`1973). The Federal Rules of Criminal Procedure provide that: “With the consent
`
`of the court and the government, a defendant may enter a conditional plea of guilty
`
`2
`
`

`
`or nolo contendere, reserving in writing the right to have an appellate court review
`
`an adverse determination of a specified pretrial motion.” Fed.R.Crim.P. 11(a)(2);
`
`see also United States v. Pierre, 120 F.3d 1153, 1155 (11th Cir. 1997) (holding that
`
`a defendant who wishes to preserve appellate review of a non-jurisdictional defect
`
`while at the same time pleading guilty can do so only by entering a “conditional
`
`plea” in accordance with Rule 11(a)(2)).
`
`White has waived his right to appeal the denial of his motion to suppress by
`
`entering into an unconditional guilty plea, without reserving in writing the right to
`
`appeal the denial of his motion to suppress. White, moreover, has no argument in
`
`his brief that his guilty plea was not knowing or voluntary. Thus, we will not
`
`review the denial of the motion to suppress.
`
`Second, White argues that the district court erred in assessing a two-level
`
`sentencing enhancement for possession of a weapon because, pursuant to Blakely
`
`v. Washington, 542 U.S. __, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the fact of
`
`possession of a weapon was not decided by the jury beyond a reasonable doubt nor
`
`admitted by him. White did not raise this issue below.
`
`When a defendant fails to make an objection or argument in the district
`
`court, review is limited to plain error. See United States v. Duncan, 381 F.3d 1070,
`
`1073 (11th Cir. 2004). “We have discretion to correct an error under the plain
`
`3
`
`

`
`error standard where (1) an error occurred, (2) the error was plain, (3) the error
`
`affected substantial rights, and (4) the error seriously affects the fairness, integrity
`
`or public reputation of judicial proceedings.” Id. at 1073-74 (internal citations
`
`omitted).
`
`Two important cases have been issued since the time that White submitted
`
`his briefs. The first is United States v. Booker, 542 U.S. __, 125 S.Ct. 738 (2005),
`
`in which the Supreme Court held that the use of a mandatory sentencing guidelines
`
`system in which sentences are increased because of an enhancement based on facts
`
`found by the judge but not admitted by the defendant or found by the jury violated
`
`the Sixth Amendment right to trial by jury. The second case is United States v.
`
`th
`Rodriguez, __ F.3d __, 2005 WL 272952 (11 Cir. Feb. 4, 2005), in which this
`
`court applied the plain error test to an appellant’s Booker challenge. There, the
`
`court determined that the error committed by the sentencing judge was “the use of
`
`extra-verdict enhancements to reach a guidelines result that is binding on the
`
`sentencing judge; the error is the mandatory nature of the guidelines once the
`
`guidelines range has been determined.” Rodriguez, 2005 WL 272952 at *9. Under
`
`the third prong of the plain error test, the court continued,
`
`where the effect of an error on the result in the district court is
`uncertain or indeterminate–where we would have to speculate–the
`appellant has not met his burden of showing a reasonable probability
`that the result would have been different but for the error; he has not
`
`4
`
`

`
`met his burden of showing prejudice; he has not met his burden of
`showing that his substantial rights have been affected.
`
`Id. at *10 (citing Jones v. United States, 527 U.S. 373, 394-95, 119 S.Ct. 2090
`
`2105 (1999)).
`
`Like the appellant in Rodriguez, White cannot meet his burden of showing
`
`that his substantial rights have been affected. He has not produced any evidence
`
`that the district court felt constrained by the mandatory nature of the guidelines and
`
`only because of those constraints sentenced him to 87 months on Counts 1 and 2
`
`and 60 months on Count 3.1
`
`Third, White argues that the district court erred in failing to apply a
`
`two-level reduction under U.S.S.G. § 2D1.1(b)(6) when he satisfied all the criteria
`
`set forth in § 5C1.2 (listing criteria for safety valve relief as found in 18 U.S.C.
`
`§ 3553(f)).
`
`We review sentencing claims raised for the first time on appeal for plain
`
`error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). Section
`
` Moreover, White’s Blakely challenge is focused solely on the two-level enhancement
`1
`for possession of a weapon. However, at sentencing, White expressly withdrew his objection to
`this enhancement, in effect admitting that he did in fact possess the weapon and the enhancement
`was in fact appropriate. Thus, no judicial fact-finding was involved, and there would have been
`no Sixth Amendment or Blakely error even in the context of mandatory guidelines because of
`White’s admission. See United States v. Shelton, __ F.3d __, 2005 WL 435120 at *4 (11 Cir.
`th
`Feb. 25, 2005) (finding no Sixth Amendment error in similar circumstances). Even though there
`was no Sixth Amendment error, there was Booker error in that the sentencing judge considered
`the Guidelines as binding rather than advisory. Id. at *5. However, as explained in the text,
`White cannot satisfy the plain error analysis with respect to this error.
`
`5
`
`

`
`2D1.1(b)(6) of the Sentencing Guidelines provides a two-level reduction for a
`
`defendant who meets the five requirements of the safety valve relief set forth in
`
`U.S.S.G. § 5C1.2. One criteria requires in pertinent part that the defendant did not
`
`use violence or credible threats of violence or possess a firearm or other dangerous
`
`weapon (or induce another participant to do so) in connection with the offense.
`
`U.S.S.G. § 5C1.2(a)(2).
`
`The district court did not commit plain error in failing to apply a reduction
`
`under U.S.S.G. § 2D1.1(b)(6) pursuant to § 5C1.2 where White did not dispute that
`
`he possessed firearms in connection with his offenses.
`
`Accordingly, we affirm White’s conviction and sentences.
`
`AFFIRMED. 2
`
`2
`
` Appellant’s request for oral argument is denied.
`
`6

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