United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 29, 2005
Charles R. Fulbruge III
Clerk
No. 04-11133
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
FREDRICK LAMONT GUINYARD
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-293-ALL-G
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Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
Fredrick Lamont Guinyard appeals his conditional guilty plea
to possession with intent to distribute crack cocaine and
possession of a firearm during a drug-trafficking crime. He
first argues that the district court erred in denying his motion
to suppress. Guinyard avers that the drugs and firearm seized as
a result of the search of a residence where he was staying were
suppressible because the officers did not have a search warrant
and because the drugs were not in plain view at the time that the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-11133
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officers breached the curtilage of the residence. Guinyard also
avers that the officers manufactured the exigent circumstances
that caused them to enter the residence without a warrant,
thereby causing the exigent-circumstance exception to the warrant
requirement to be inapplicable.
A district court’s ruling on a motion to suppress based upon
live testimony at a suppression hearing is accepted unless
clearly erroneous or influenced by an incorrect view of the law.
United States v. Foy, 28 F.3d 464, 474 (5th Cir. 1994); United
States v. Laury, 985 F.2d 1293, 1314 (5th Cir. 1993). Viewing
the evidence in the light most favorable to the Government, we
conclude that the district court did not err in finding that the
officers did not breach the curtilage of the home as they
approached the home and stood around the front door to conduct
the “knock and talk.” United States v. Thomas, 120 F.3d 564, 571
(5th Cir. 1997).
Nor do we find any merit in Guinyard’s argument that the
police officers manufactured the exigent circumstances which
caused the officers to enter the house without a warrant. The
occupants, not the officers, caused the exigent circumstances by
opening the window revealing the drugs in plain view to anyone
standing outside the residence and by shouting out “5-0.” See
United States v. Rico, 51 F.3d 495, 506 (5th Cir. 1995). The
officers’ subsequent entry into the house was justified to ensure
their safety and to prevent destruction of the drugs they
No. 04-11133
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observed through the window. United States v. Jones, 239 F.3d
716, 722 (5th Cir. 2001).
Guinyard avers next that the district court committed
reversible error when it sentenced him pursuant to the mandatory
United States Sentencing Guidelines system held unconstitutional
in United States v. Booker, 125 S. Ct. 738 (2005). Guinyard’s
plea agreement contained a waiver-of-appeal provision by which he
waived, inter alia, “the right to appeal the sentence imposed or
the manner in which it was determined,” except for a sentence
above the statutory maximum or an upward departure from the
applicable Guidelines range.
A defendant may waive his statutory right to appeal as part
of a plea agreement. United States v. Melancon, 972 F.2d 566,
567 (5th Cir. 1992). This court reviews de novo whether an
appeal waiver prevents an appeal. United States v. Baymon, 312
F.3d 725, 727 (5th Cir. 2002). To make this determination, this
court conducts a two-step inquiry, asking (1) “whether the waiver
was knowing and voluntary,” and (2) “whether the waiver applies
to the circumstances at hand, based on the plain language of the
agreement.” United States v. Bond, __ F.3d __, 2005 WL 1459641
at *2 (5th Cir. June 21, 2005).
The record reflects that Guinyard knowingly waived his right
to appeal his sentence. The district court specifically
referenced the appeal-waiver provision at the rearraignment
hearing and advised Guinyard that he waived his right to appeal
No. 04-11133
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except on certain limited grounds. Guinyard stated that he
understood the appeal-waiver clause. The fact that Booker was
decided after Guinyard entered his guilty plea does not
invalidate the plea. See Brady v. United States, 397 U.S. 742,
757 (1970); United States v. Bradley, 400 F.3d 459, 464 (6th Cir.
2005), petition for cert. filed (June 9, 2005) (No. 04-10620).
Thus, the appeal waiver precludes review of Guinyard’s Booker
claim. See Bond, 2005 WL 1459641 at *2-3; United States v.
Cortez, __ F.3d __, 2005 WL 1404944 at *1 (5th Cir. June 16,
2005); United States v. McKinney, 406 F.3d 744, 746-47 (5th Cir.
2005). The judgment of the district court is AFFIRMED.