1

The Honorable Mark W. Bennett, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-3093

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Northern District of Iowa. 

Francisco Marcos Quiroga, *

*

Appellant. * 

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Submitted: April 15, 2008

Filed: February 9, 2009

___________

Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.

___________

COLLOTON, Circuit Judge.

A grand jury charged Francisco Marcos Quiroga with one count of possession

with intent to distribute five grams or more of pure methamphetamine within 1000

feet of a playground, in violation of 21 U.S.C. §§ 841(a)(1) and 860(a). Quiroga pled

guilty pursuant to a plea agreement, but the district court1

 later granted his motion to

withdraw the plea under Federal Rule of Criminal Procedure 11(d)(2)(B). Quiroga

then moved to suppress evidence seized at the time of his arrest, and moved in limine
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to exclude incriminating statements that he made in the initial plea agreement. After

the district court denied these motions, Quiroga entered a conditional plea of guilty,

pursuant to Rule 11(a)(2), preserving the right to appeal the district court’s adverse

rulings on the motion to suppress and the motion in limine. The district court

sentenced Quiroga to 292 months’ imprisonment. Quiroga appeals the district court’s

pre-trial rulings and his sentence. We affirm.

I.

On September 21, 2005, Officers Lane Siefken and Jason Stiles responded to

a report of a disturbance at an apartment in Mason City, Iowa. When the officers

arrived, they saw Quiroga run behind the apartment building. The officers walked to

the back of the apartment and saw Quiroga, Quiroga’s live-in girlfriend, Jill Hjelle,

and Hjelle’s mother. Quiroga explained that he lost his temper during an argument

with Hjelle. The officers separated Quiroga and Hjelle and diffused the situation. At

that point, Quiroga and Hjelle left the scene in separate vehicles.

As the officers walked back to their car, a neighbor approached and said that

when the officers arrived, Quiroga ran to the back of the apartment building and

dropped something over the fence. In the area that the neighbor had identified, the

officers found a plastic bag containing jewelry, a small quantity of cash, a lighter, and

a second clear plastic bag containing a white substance. The officers believed that the

white substance was methamphetamine. To confirm their belief, Stiles took his

trained canine out of the patrol car and gave the dog an “open area” command to

search for drugs. The dog found the plastic bag and indicated that it contained drugs.

Thinking that Quiroga might return, Stiles returned the bag to its original

location, and positioned himself so that he would be hidden from someone

approaching from the front of the apartment. Three to five minutes later, Quiroga

approached the apartment from the back, through a heavily wooded yard, rather than
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through the driveway in the front. Realizing that Quiroga would see him, Stiles made

his presence known when Quiroga was about fifteen feet from the bag. Quiroga told

Stiles that he had come back to the apartment to pick up a speaker. When Stiles asked

why he had not parked in the driveway in front, Quiroga did not answer. Stiles placed

Quiroga under arrest. During a search incident to arrest, he discovered $3501 on

Quiroga’s person.

A grand jury charged Quiroga with possession with intent to distribute five

grams or more of pure methamphetamine within 1000 feet of a playground. The

indictment also gave notice that Quiroga was subject to enhanced punishment under

21 U.S.C. § 841(b) because of a prior conviction for a felony drug offense. See 21

U.S.C. § 851; United States v. Roundtree, 534 F.3d 876, 881 (8th Cir. 2008). On

October 12, 2006, Quiroga signed a written plea agreement with the government. The

parties agreed that Quiroga’s base offense level under the advisory guidelines would

be 26, that he would receive a two-level adjustment for distribution of

methamphetamine within 1000 feet of a playground, and that he would qualify for a

two-level downward adjustment for acceptance of responsibility, but reached no

agreement as to the ultimate sentence that would be imposed. Quiroga further agreed

that he would “have no right to withdraw his guilty plea if the sentence imposed is

other than he hoped for or anticipated.”

Quiroga entered a plea of guilty, which the district court accepted based on the

report and recommendation of a magistrate judge. Two months later, Quiroga filed

a motion to withdraw his plea, arguing that his counsel incorrectly advised him that

he could not be sentenced as a career offender under USSG § 4B1.1. The district

court initially denied the motion, but on reconsideration, allowed Quiroga to withdraw

his plea. United States v. Marcos-Quiroga, 478 F. Supp. 2d 1114, 1144 (N.D. Iowa

2007). The court found that “Marcos-Quiroga’s decision to plead guilty to the offense

charged in this case was based upon his counsel’s assurance that he was not a career

offender . . . and that, but for his counsel’s advice, Marcos-Quiroga would not have
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pleaded guilty to the offense charged in this case.” Id. at 1118. On this basis, the

court concluded that Quiroga had received ineffective assistance of counsel and had

established a fair and just reason to withdraw his plea.

After withdrawing his guilty plea, Quiroga filed a motion to suppress the

currency found on his person after his arrest, arguing that the officers lacked probable

cause to arrest him. The district court denied this motion. Quiroga also filed a motion

in limine, urging the court to exclude any evidence regarding the initial plea

agreement and his withdrawn guilty plea. Quiroga relied on Federal Rule of Evidence

410, which makes inadmissible certain pleas, plea discussions, and related statements.

The district court denied the motion on the ground that Quiroga had waived his rights

under Rule 410 in the original plea agreement. 

Quiroga then entered a conditional guilty plea, which the district court accepted.

The district court found that Quiroga was subject to the career offender guideline and

sentenced him to 292 months’ imprisonment, at the bottom of the advisory guideline

range.

II.

Quiroga first challenges the denial of his motion to suppress the currency found

on his person when he was arrested, on the ground that the officers lacked probable

cause to arrest him. We review de novo the district court’s conclusion that there was

probable cause to arrest, and the underlying factual determinations for clear error.

Ornelas v. United States, 517 U.S. 690, 699 (1996). “An officer has probable cause

to make a warrantless arrest when the facts and circumstances are sufficient to lead

a reasonable person to believe that the defendant has committed or is committing an

offense.” United States v. Torres-Lona, 491 F.3d 750, 755 (8th Cir. 2007). We

consider “the totality of the circumstances as set forth in the information available to
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the officers at the time of arrest.” United States v. Kelly, 329 F.3d 624, 628 (8th Cir.

2003). 

We conclude that the officers had probable cause to arrest Quiroga. When the

officers arrived at the apartment, they saw Quiroga running in the vicinity where the

officers later found the drugs. A neighbor told the officers that Quiroga had dropped

a bag in that same area. This evidence, together with Quiroga’s suspicious return to

the scene a short time later from a heavily wooded area behind the apartment, is

sufficient to lead a reasonably prudent person to believe that the bag containing

methamphetamine was Quiroga’s. Quiroga claims that he returned to the apartment

from the rear in order to avoid a confrontation with his girlfriend, but reasonable

officers were entitled to draw a different inference. Accordingly, we conclude there

was probable cause for the arrest, and the district court correctly denied the motion to

suppress.

III.

Quiroga next argues that the district court erroneously denied his motion in

limine to exclude evidence relating to his previously withdrawn plea agreement. The

plea agreement included a stipulation of facts that acknowledged Quiroga’s knowing

possession of the bag containing methamphetamine and his intent to distribute some

or all of the drugs to another person. Quiroga contends that Federal Rule of Evidence

410 makes this evidence inadmissible. 

Under Rule 410, statements made in the course of plea negotiations are

inadmissible against the defendant. This right of the defendant, however, is waivable

by agreement, unless there is “some affirmative indication that the agreement was

entered into unknowingly or involuntarily.” United States v. Young, 223 F.3d 905,

909-10 (8th Cir. 2000) (quoting United States v. Mezzanatto, 513 U.S. 196, 210

(1995)). Quiroga’s original plea agreement contained a provision stating:
2

The district court reasoned that it was “constrained” to reach this conclusion

by an “apparent assumption” of this court in United States v. Swick, 262 F.3d 684 (8th

Cir. 2001), that “moving to withdraw a guilty plea is a breach of a plea agreement.”

United States v. Marcos-Quiroga, No. CR 06-3009-MWB, 2007 WL 1724898, at *9

n.3 (N.D. Iowa June 12, 2007). Whether the district court was in fact so constrained

is debatable, given that the opinion in Swick, 262 F.3d at 686-87, addressed only

whether the defendant’s waiver of rights under Rule 410 was knowing and voluntary.

See Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir. 1985)

(“[U]nstated assumptions on non-litigated issues are not precedential holdings binding

future decisions.”); cf. United States v. Newbert, 504 F.3d 180, 185-88 (1st Cir. 2008)

(addressing whether a motion to withdraw a guilty plea breached a plea agreement

worded differently than the agreement in this case); id. at 188-89 (Boudin, C.J.,

concurring). As noted, however, Quiroga does not raise this point on appeal.

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If the defendant violates any term or condition of this plea agreement, in

any respect, the entire agreement will be deemed to have been breached

. . . . If the defendant does breach this agreement, he faces the following

consequences: (1) all testimony and other information he has provided

at any time to attorneys, employees or law enforcement officers of the

government, to the court, or to the federal grand jury, may and will be

used against him in any prosecution or proceeding . . . . 

(App. 5-6) (boldface in original; italicization added). The parties agree that the

italicized language, if enforceable, constitutes a waiver of Quiroga’s rights under Rule

410. 

One term of the plea agreement was that Quiroga would plead guilty to the

indictment. (App. 1). The district court concluded that Quiroga breached this term

when he moved to withdraw his guilty plea, and Quiroga does not dispute this point.2

Quiroga contends, however, that because his attorney gave incorrect advice that he

would not be classified as a career offender under the advisory guidelines, he did not

knowingly and voluntarily enter into the plea agreement or execute the waiver

contained within the agreement. Whether Quiroga knowingly and voluntarily waived
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rights in his plea agreement is a legal question that we review de novo. Swick, 262

F.3d at 686; Young, 223 F.3d at 909. 

Quiroga’s argument, in summary, is that his attorney advised him incorrectly

that he would not be subject to the career offender guideline, that Quiroga relied on

this advice in signing the plea agreement that contained the waiver, and that his

agreement to waive rights under Rule 410 was therefore not knowing and voluntary.

This contention founders on abundant circuit precedent holding that inaccurate advice

of counsel about the sentencing guidelines or likely punishment does not render

involuntary a defendant’s decision to plead guilty, so long as the defendant is

informed of the maximum possible sentence permitted by statute and the court’s

ability to sentence within that range. In United States v. Granados, 168 F.3d 343 (8th

Cir. 1999) (per curiam), for example, this court stated that “a defendant’s reliance on

an attorney’s mistaken impression about the length of sentence is insufficient to render

a plea involuntary as long as the court informed the defendant of his maximum

possible sentence.” Id. at 345. Several other decisions are to the same effect. United

States v. Gomez, 326 F.3d 971, 975 (8th Cir. 2003) (rejecting a defendant’s contention

that a guilty plea was not “knowing and voluntary” where counsel did not advise him

that he would be sentenced as a career offender, because, inter alia, “the sentencing

stipulations in the plea agreement were clearly stated to be non-binding on the

sentencing court”); United States v. Spears, 235 F.3d 1150, 1152 (8th Cir. 2001)

(holding that a defendant’s guilty plea was “knowing and voluntary,” despite “any

confusion about how he would fare under the Sentencing Guidelines”); United States

v. Bond, 135 F.3d 1247, 1248 (8th Cir. 1998) (per curiam) (“A defense counsel’s

erroneous estimate of a guidelines sentence does not render an otherwise voluntary

plea involuntary.”); Roberson v. United States, 901 F.2d 1475, 1478 (8th Cir. 1990)

(holding that a defendant’s reliance on defense counsel’s erroneous prediction that he

would receive a more lenient sentence if he pled guilty did not make his plea

involuntary, where the defendant was fully informed of the maximum sentence on

each count); Hollis v. United States, 687 F.2d 257, 260 (8th Cir. 1982) (rejecting a
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defendant’s claim that his plea was involuntary, as “[t]he rule is clear that a defendant

cannot set aside a guilty plea merely because he relied on his attorney’s opinion that

the sentence would be a lenient one”); see also United States v. Silva, 430 F.3d 1096,

1100 (10th Cir. 2005) (rejecting a defendant’s contention that his guilty plea was

involuntary and unknowing due to his attorney’s erroneous advice about the likely

sentencing range under the guidelines, because the defendant “expressly indicated he

was fully aware that the prosecution had declined to agree that a specific sentence was

the appropriate disposition in his case, and that he faced a maximum term of twenty

years imprisonment at sentencing”). That the sentencing guidelines are now merely

advisory, and thus less likely to determine the ultimate sentence than when they were

mandatory, only strengthens the force of these precedents. If a guilty plea is knowing

and voluntary notwithstanding counsel’s erroneous advice about the sentencing

guidelines, we see no reason why a waiver of rights in a plea agreement would not

also be knowing and voluntary despite such mistaken guidance.

The plea agreement signed by Quiroga specified the statutory penalties for the

offense to which he agreed to plead guilty: a term of imprisonment of at least ten

years and up to life without the possibility of parole, a fine of $8 million, or both; a

special assessment of $100; and a period of supervised release of at least eight years

and up to life. (App. 1). The agreement further provided that while “the parties may

have discussed how various factors could impact the court’s sentencing decision and

the determination of the advisory sentencing guidelines range,” the parties agreed that

“discussions did not result in any express or implied promise or guarantee concerning

the actual sentence to be imposed by the court.” (App. 3). The agreement also said

that the defendant “understands that he will have no right to withdraw his guilty plea

if the sentence imposed is other than he hoped for or anticipated.” (Id.). Quiroga

signed the agreement and initialed each paragraph to indicate his understanding.

These admonitions were sufficient to advise Quiroga that his plea agreement and the

contemplated guilty plea could result in a sentence ranging up to the statutory

maximum term of life imprisonment. Under our precedents, Quiroga’s
3

The district court explained its decision on the motion in limine as follows:

The court cannot find that there is any real question as to whether

Marcos-Quiroga’s waiver of the protections of Rule 410 in his plea

agreement was knowing and voluntary or that he later breached that plea

agreement by withdrawing his guilty plea. In allowing Marcos-Quiroga

to withdraw his guilty plea, the court found that his guilty plea was not

“knowing” or “voluntary” only to the extent that he was not provided by

counsel with a realistic understanding of the relative risks of pleading

guilty or going to trial, where counsel failed to advise him correctly

about his exposure to a sentencing enhancement as a career criminal.

The court did not find or suggest that counsel’s advice concerning the

effect of provisions of the plea agreement, such as the waiver of Rule

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misunderstanding about the application of the career offender guideline did not render

the plea agreement and its waiver of rights under Rule 410 unknowing or involuntary.

In support of his contention that the waiver of rights under Rule 410 was not

knowing and voluntary, Quiroga relies on the district court’s prior decision to grant

his motion to withdraw the guilty plea. The district court’s opinion on that matter

concluded that Quiroga received ineffective assistance of counsel in connection with

the plea, and stated that inaccurate advice about the impact of criminal history “may

render a guilty plea neither knowing nor voluntary.” Marcos-Quiroga, 478 F. Supp.

2d at 1136. In its ruling on the motion in limine, the district court amplified its view

that counsel’s erroneous advice about the sentencing guidelines “infected the

knowingness and voluntariness” of Quiroga’s guilty plea. Marcos-Quiroga, 2007 WL

1724898, at *9.

Quiroga argues that the rationale of the district court’s decision allowing him

to withdraw his guilty plea is inconsistent with the district court’s ruling on the motion

in limine, because if counsel’s bad advice rendered his guilty plea unknowing and

involuntary, then it also rendered his decision to enter into the antecedent plea

agreement (and the attendant Rule 410 waiver) unknowing and involuntary.3

 It makes
410 rights, resulted in a plea that was not knowing or voluntary. . . . To

put it another way, the court cannot find that prior counsel’s error, which

infected the knowingness and voluntariness of Marcos-Quiroga’s guilty

plea, also infected the knowingness and voluntariness of MarcosQuiroga’s waiver of Rule 410 rights under the plea agreement.

Marcos-Quiroga, 2007 WL 1724898, at *9 (citations omitted).

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no sense, Quiroga submits, to conclude that while he unknowingly and involuntarily

agreed to plead guilty based on mistaken advice about sentencing, he also knowingly

and voluntarily agreed at the same time to a Rule 410 waiver that would effectively

preclude him from proceeding to trial if he later realized that his plea was unknowing

and involuntary. Cf. Chesney v. United States, 367 F.3d 1055, 1058-59 (8th Cir.

2004). Be that as it may, we are not bound to reconcile the district court’s orders. The

order granting Quiroga’s motion to withdraw his guilty plea was an interlocutory step

in the proceedings that was not appealable by the government. United States v.

Martin, 611 F.2d 260, 261 (9th Cir. 1979); United States v. Shapiro, 222 F.2d 836,

838 (7th Cir. 1955); 15B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice and Procedure § 3919.7, at 713 & n.12 (2d ed. 1991). As such, it

did not become law of the case that must conform to a holding that Quiroga’s waiver

of rights in the plea agreement was knowing and voluntary. See Murr Plumbing, Inc.

v. Scherer Bros. Fin. Servs. Co., 48 F.3d 1066, 1070 (8th Cir. 1995); 18B Wright,

Miller & Cooper, supra, § 4478.6, at 829. For the reasons stated, we conclude that

Quiroga’s waiver of his rights under Rule 410 was knowing and voluntary, and that

the district court properly denied the motion in limine to exclude statements made by

Quiroga in the plea agreement.
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IV.

Quiroga raises two challenges to his sentence. First, he contends that the

district court erred by classifying him as a career offender under USSG § 4B1.1,

because he had not sustained two prior felony convictions for a crime of violence or

controlled substance offense. Specifically, he contends that his conviction for assault

with intent to commit sexual abuse under Iowa Code § 709.11 should not have been

counted as a felony crime of violence. He notes that the offense is an aggravated

misdemeanor under Iowa law, and asserts that the victim of the assault suffered no

injury.

In considering whether Quiroga’s prior assault conviction was a qualifying

felony conviction under § 4B1.2, the district court reasoned as follows:

Pursuant to Iowa Code § 709.11, any person who commits an assault

with intent to commit sexual abuse, but no injury results, is guilty of an

aggravated misdemeanor. Pursuant to Iowa Code § 903.1(2), a person

convicted of an aggravated misdemeanor for which no specific penalty

is provided faces a maximum penalty of imprisonment not to exceed two

years. Thus, this offense qualified as a “felony” under the guidelines.

Moreover, the application notes to U.S.S.G. § 4B1.2 expressly state that,

for purposes of the career offender guideline, “crime of violence”

includes, inter alia, aggravated assault and forcible sex offenses.

U.S.S.G. § 4B1.2, n.1. Thus, there is no doubt that Marcos-Quiroga’s

prior conviction for assault with intent to commit sexual abuse, albeit

designated a misdemeanor under Iowa law, is a qualifying offense for

career offender status under § 4B1.1.

Marcos-Quiroga, 478 F. Supp. 2d at 1124. We agree with this analysis, and therefore

reject Quiroga’s challenge to the district court’s conclusion that he was a career

offender.
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Quiroga also asserts that the district court impermissibly “double-counted” his

prior Iowa conviction for delivery of a controlled substance, because the conviction

served to increase the statutory penalties for the instant offense, pursuant to 21 U.S.C.

§§ 841(b) and 851, and also to classify him as a career offender pursuant to USSG

§ 4B1.1. Several courts have rejected comparable contentions, on the view that

double enhancement is not forbidden by the Constitution as long as it is intended by

the Legislature, and, in any event, there is no double enhancement where the

sentencing guidelines merely establish a range of punishment within the range of

penalties authorized by statute. United States v. Moralez, 964 F.2d 677, 682-83 (7th

Cir. 1992); United States v. Amis, 926 F.2d 328, 330 (3d Cir. 1991); United States v.

Sanchez-Lopez, 879 F.2d 541, 559 (9th Cir. 1989). 

Quiroga seeks to distinguish these cases by relying on recent Sixth Amendment

jurisprudence, including the decision in Cunningham v. California, 549 U.S. 270

(2007). There, in a case involving California’s sentencing system, the Court stated

that “[a] fact underlying an enhancement cannot do double duty; it cannot be used to

impose an upper term sentence and, on top of that, an enhanced term.” Id. at 281.

The text at issue, however, was a description of the California Penal Code; the

statement was even followed by a citation to Penal Code § 1170(b). Id. The passage

cited by Quiroga did not purport to establish a constitutional requirement. Now that

the federal sentencing guidelines are advisory, factual findings by the district court

that increase the advisory offense level do not violate the Sixth Amendment. United

States v. Brave Thunder, 445 F.3d 1062, 1065 (8th Cir. 2006). In this case, moreover,

the enhancements were based on findings about Quiroga’s prior convictions, and thus

did not implicate the Sixth Amendment. Almendarez-Torres v. United States, 523

U.S. 224, 239-47 (1998). For these reasons, we discern no legal error in the district

court’s imposition of sentence.

* * *
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The judgment of the district court is affirmed.

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