[Do Not Publish]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-10783 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ December 6, 2005
THOMAS K. KAHN
D. C. Docket No. 02-00011-CR-001-CAR-7 CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH JOHN PACHINGER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(December 6, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before BIRCH, BARKETT and FAY, Circuit Judges.
PER CURIAM:
In an opinion filed January 3, 2005, we affirmed the rulings of the district
court which denied appellant’s motion to suppress and sentenced him to 145
months in prison. Pachinger then filed a petition for writ of certiorari with the
Supreme Court of the United States. The Court granted the petition, vacated our
judgment, and remanded the case for further consideration in light of United States
v. Booker, 543 U.S. , 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). After such
reconsideration, we reinstate our prior opinion which held that the district court
did not err in denying Pachinger’s motion to suppress, and that Pachinger
voluntarily entered into a valid appeal waiver to challenge his sentence.1
I. Factual Background
Kenneth John Pachinger was convicted and sentenced to 145 months for
distribution of cocaine, heroin, and marihuana to a person under 21 years of age,
in violation of 21 U.S.C. §§ 841(a)(1), 859(a) (hereafter referred to as “Count 2"),
and sexual exploitation of a child, in violation of 18 U.S.C. § 2251(a) (hereafter
referred to as “Count 3"). Pachinger pled guilty to both counts 2 and 3; and, in
addition, he expressly agreed in his plea agreement that he was waiving his right
1
In reinstating our earlier opinion, under Issue 2: Sentencing, we reinstate only the first
three paragraphs dealing with the sentence imposed and the waiver of appeal.
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to appeal his sentence. After Pachinger pled guilty to the above-mentioned
violations, the district court increased his base offense level for count 3 by two
levels, pursuant to U.S.S.G. § 2G2.1(b)(2). This increase was based upon the
court’s determination that the offense involved a victim who was a minor, within
defendant’s custody, care, or supervisory control. The court also increased his base
offense by two more levels, pursuant to U.S.S.G. § 3C1.1, for obstruction of
justice. Pachinger argues that the district court (1) erred in denying his motion to
suppress evidence, and (2) violated his Sixth Amendment right to a jury trial by
enhancing his guideline offense level based on facts that neither were charged in
his indictment nor proven to a jury beyond a reasonable doubt, in light of Blakely
v. Washington, 542 U.S. , 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and United
States v. Booker, 543 U.S. , 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
III. Motion to Suppress
With regards to Pachinger’s motion to suppress evidence seized at the time
of his arrest, we reinstate our prior holding that the initial warrantless search of
Pachinger’s hotel room was justified as a search incident to exigent
circumstances.2
2
United States v. Booker has no relevance to our holding on the motion to suppress.
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IV. Sentencing
Pachinger contends that in light of Booker his sentence is unconstitutional
for the following reasons: (1) that the district court erred in sentencing him based
on facts that were neither charged in his indictment nor found by a jury beyond a
reasonable doubt; and (2) that his appeal waiver was predicated on the belief that
the Federal Sentencing Guidelines were constitutional. We find both of these
arguments to be non-persuasive.
Pachinger relies on Blakely and Booker, arguing that the Supreme Court
held that the imposition, based solely on the sentencing judge’s factual findings of
a sentence enhancement, violated the defendant’s Sixth Amendment rights
because the facts supporting the findings neither were admitted by the defendant,
nor found by a jury. See Blakely,124 S.Ct. at 2534-38 and Booker, 125 S.Ct at
755-56.
Pachinger contends that the district court erred when increasing his base
offense level for Count 3 by two levels. He asserts his indictment did not include
that the victim in Count 3 was a minor in his custody, care, or supervisory control.
In addition, Pachinger contends that the district court erred by increasing his base
offense level by two more levels for obstruction of justice. He argues that his
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indictment did not include the fact that he obstructed justice by not appearing in
court for his change-of-plea hearing.
Contrary to these assertions, a review of the record shows that Pachinger
admitted that the minor was staying with him at his motel, and during his
sentencing hearing he admitted that he failed to appear for his change-of-plea
hearing.3 Therefore, it is clear that there was an admitted basis for the district court
to make such enhancements.
In addition, Pachinger seems to argue that the government failed to
articulate a sufficient factual basis for the quantity of drugs seized in Count 2.
However, on February 5, 2004, in open court, Pachinger and his attorney
stipulated to the quantity of illegal drugs that were involved in this case.4
Appeal Waiver
The record reflects that Pachinger expressly agreed in his plea agreement
that he was waiving his right to appeal his sentence, except: (1) to challenge an
upward departure, (2) to raise a claim of ineffective assistance of counsel, (3) to
3
Page 6, Line 1-6 of the Sentencing Hearing.
4
According to the transcript of the sentencing hearing, the parties stipulated that the
amount of illegal drugs involved in this case was more than 100 grams but less than 200 grams of
cocaine. Page 8, Line 11-13.
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appeal the court’s denial of his suppression motion, or (4) in the event that the
government filed an appeal of his sentence. Such a waiver will be enforced if the
government demonstrates either: “(1) the district court specifically questioned the
defendant about the waiver during the plea colloquy, or (2) the record clearly
shows that the defendant otherwise understood the full significance of the waiver.”
Benitez-Zapata, 131 F.3d 1444 at 1446.
During Pachinger’s change-of-plea hearing, the magistrate carefully
confirmed that he understood the full ramifications of waiving his appeal rights.
The record confirms that Pachinger’s appeal waiver was entered into knowingly
and voluntarily.
Lastly, Pachinger argues that because the Federal Sentencing Guidelines
were constitutional at the time he executed his appeal waiver but have now been
held unconstitutional, he should be able to rescind that waiver. However, because
this argument is clearly outside the listed exceptions to the appeal waiver, it is
waived. See United States v. Brown, 415 F.3d 1257,1272-73 (11th Cir.2005).
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V. Conclusion
After reconsideration of this matter in light of Booker, we conclude there
was no error in the denial of appellant’s motion to suppress and that he knowingly
and voluntarily waived the right to appeal his other contentions.
OPINION REINSTATED. CONVICTIONS AND SENTENCES AFFIRMED.
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