FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-10081

Plaintiff-Appellee, D.C. No.

v.  CR-03-00154-

HDM(VPC) SAUL LOPEZ-ARMENTA,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Nevada

Howard D. McKibben, District Judge, Presiding

Submitted December 8, 2004

San Francisco, California

Memorandum Disposition Filed December 20, 2004

Withdrawn March 10, 2005

Filed March 10, 2005

Before: Alex Kozinski, William A. Fletcher, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

3175
COUNSEL

Michael K. Powell, Assistant Federal Public Defender, Reno,

Nevada, for the appellant. 

Craig S. Denney, Assistant United States Attorney, Reno,

Nevada, for the appellee. 

OPINION

BYBEE, Circuit Judge: 

Saul Lopez-Armenta was indicted for various charges

related to the possession and distribution of methamphetamine and cocaine. After unsuccessfully moving to suppress

evidence obtained through a search of his vehicle, Lopez

entered an unconditional plea of guilty as to all counts listed

in the indictment. He now appeals the district court’s denial

of his motion to suppress, arguing that the police lacked both

probable cause and reasonable suspicion and that his plea

should not be construed as waiving his right to challenge the

lower court’s ruling on these issues. 

UNITED STATES v. LOPEZ-ARMENTA 3177
For the following reasons, we conclude that Lopez waived

his right to appeal pretrial constitutional defects when he

entered an unconditional guilty plea. Accordingly, we dismiss

the appeal.

I

On the basis of evidence uncovered during the search of his

vehicle, Lopez was indicted for conspiracy to distribute

methamphetamine in violation of 21 U.S.C. §§ 841, 846 and

18 U.S.C. § 2, possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2,

possession with intent to distribute cocaine in violation of 21

U.S.C. § 841, and interstate travel in aid of racketeering in

violation of 18 U.S.C. § 1952(a)(3). He moved to suppress

evidence obtained during the search, and the district court

denied the motion after an evidentiary hearing. Lopez subsequently pled guilty to all counts listed in the indictment without the benefit of a written plea agreement reserving his right

to appeal the district court’s ruling on his motion to suppress.1

Approximately three months later, Lopez was sentenced to

64 months in prison. At the sentencing hearing, the government stated, on the record, that the “defendant pled guilty

without the benefit of a plea agreement to preserve his right

to appeal the Court’s determination on the suppression hearing.” Also, after imposing the sentence, the court stated, on

the record, “There was no plea agreement in this case. You

have the right to appeal. Any appeal in this case will be filed

in writing within 10 days of today’s date, and I’ll appoint the

Federal Defenders Officer to represent you in the event you

elect to file that written notice of appeal.” 

1As a result of his cooperation, Lopez qualified for a “safety valve”

adjustment, whereby the sentence that he was facing — initially, a 10 year

statutory minimum — was reducible to 64 months. See 18 U.S.C.

§ 3553(f). 

3178 UNITED STATES v. LOPEZ-ARMENTA
Lopez subsequently appealed to this court, seeking to challenge the district court’s denial of his motion to suppress. The

government moved to dismiss the appeal and a motions panel

of this court denied the motion, transferring the case to a merits panel. In so ruling, the motions panel cited our decision in

United States v. Buchanan, 59 F.3d 914 (9th Cir. 1995), for

the proposition that “because the district court stated on the

record at the time of sentencing that appellant had the right to

appeal . . . the district court’s oral pronouncement must control.” 

II

We note, at the outset, that the order of the motions panel,

denying the government’s motion to dismiss, does not preclude us from reaching a contrary decision. Rather, if we conclude that Lopez waived his right to bring this appeal, we may

dismiss it notwithstanding the fact that a prior motions panel

denied the government’s motion. See, e.g., United States v.

Nunez, 223 F.3d 956, 958 (9th Cir. 2000) (citing Malone v.

Avenenti, 850 F.2d 569, 571 (9th Cir. 1988)); United States v.

Houser, 804 F.2d 565, 567-68 (9th Cir. 1986). It is to that

inquiry that we now turn. 

III

[1] It is undisputed that Lopez pled guilty without the benefit of a written Rule 11(a)(2) plea agreement reserving his

right to appeal the district court’s ruling on his motion to suppress. Moreover, it is well-settled that an unconditional guilty

plea constitutes a waiver of the right to appeal all nonjurisdictional antecedent rulings and cures all antecedent constitutional defects. See, e.g., United States v. Floyd, 108 F.3d 202,

204 (9th Cir. 1997); United States v. Cortez, 973 F.2d 764,

766 (9th Cir. 1992). Accordingly, the Supreme Court has

declared: 

When a criminal defendant has solemnly admitted in

open court that he is in fact guilty of the offense with

UNITED STATES v. LOPEZ-ARMENTA 3179
which he is charged, he may not thereafter raise

independent claims relating to the deprivation of

constitutional rights that occurred prior to the entry

of the guilty plea. He may only attack the voluntary

and intelligent character of the guilty plea . . . . 

Tollett v. Henderson, 411 U.S. 258, 267 (1973). Consequently, by entering an unconditional guilty plea, Lopez

waived his right to bring this appeal, which seeks only to

challenge the district court’s ruling on his motion to suppress.

Nonetheless, in support of this appeal, Lopez points to the

district court’s on-the-record statement at the sentencing hearing, informing him that he had the right to appeal, as well as

the government’s statement, at sentencing, that the “defendant

pled guilty without the benefit of a plea agreement to preserve

his right to appeal the Court’s determination on the suppression hearing.” Citing our decision in Buchanan, 59 F.3d at

917, he argues that these statements serve to preserve his

appellate rights. 

[2] We agree that the statements leave the record ambiguous. Specifically, it is unclear whether the sentencing judge

was referring to Lopez’s right to appeal the ruling on his suppression motion or his sentence, the latter of which is explicitly required by Fed. R. Crim. P. 32(j)(1)(B). The

government’s statement is more clear. Its natural reading is

that Lopez had not preserved his right to appeal the suppression ruling. Cf. Fed. R. Crim. P. 11(a)(2) (“[A] defendant may

enter a conditional plea of guilty or nolo contendere, reserving

in writing the right to have an appellate court review an

adverse determination of a specified pretrial motion.”). With

both statements being made in the same hearing, the apparent

confusion is understandable. Nevertheless, the ambiguity is

ultimately irrelevant for our purposes. Both statements were

made approximately three months after Lopez entered his

unconditional guilty plea, and Lopez “points to no evidence

3180 UNITED STATES v. LOPEZ-ARMENTA
in the record that [his] plea was involuntary at the time that

[he] entered it.” Floyd, 108 F.3d at 204. 

Moreover, and contrary to the appellant’s argument, we

find Buchanan inapplicable to these facts. In Buchanan, the

defendant pled guilty to fraud and failure to appear and agreed

to waive appeal if his sentence was set within the Guidelines.

Four months later, at sentencing, he tried to withdraw his plea

because it contained unfavorable stipulations. The district

court noted that he could appeal his “sentencing findings.” 59

F.3d at 916. Rather than withdraw his plea, the defendant and

the government agreed to modify the plea agreement to allow

the parties to argue for a departure. On the following day the

district court sentenced Buchanan and, despite the waiver

clause in the plea agreement, again told him he had the right

to appeal his sentence. Although we concluded that Buchanan’s waiver was knowingly and voluntarily entered, we reasoned that the district court’s unambiguous advice at his

sentencing hearings, informing Buchanan that he had the right

to appeal his sentence, could have created a reasonable expectation that the defendant was permitted to appeal his sentence.

Indeed, he might have relied on this advice in deciding not to

withdraw his plea, but instead to amend the plea agreement.

Relying on cases involving a conflict between the oral pronouncement of sentence and the written judgment, we held

that the sentencing judge’s oral pronouncement must control,

and proceeded to address the defendant’s sentencing claims

on the merits. Id. at 917-18. 

By contrast, in Floyd the defendant was stopped and

searched by DEA agents at Los Angeles International Airport,

and was found to be carrying a large package of cocaine and

cocaine base. She was arrested and later charged with two

counts of possession of cocaine and cocaine base with intent

to distribute. Floyd initially pled not guilty to the charges, and

moved to suppress the evidence discovered during the search

of her person. After the district court denied her motion to

suppress, Floyd changed her plea to guilty on both counts.

UNITED STATES v. LOPEZ-ARMENTA 3181
She did so without the benefit of a plea agreement reserving

her right to appeal the court’s ruling on her motion to suppress. Approximately three months later, at Floyd’s sentencing hearing, her counsel stated: “I will be filing a notice of

appeal in this matter, pursuing the appeal with respect to the

denial of the suppression motion.” Id. at 203. The district

court responded, “Surely,” and the government did not object

to the mention of appealing the suppression motion. Id. Floyd

subsequently filed a timely notice of appeal, claiming that the

district court erred in denying her suppression motion, and the

government moved to dismiss for lack of jurisdiction. 

[3] On these facts — two years after Buchanan — we held

that the defendant’s unconditional guilty plea controlled. Id.

at 204. We distinguished two cases in which guilty pleas not

meeting the requirements of Rule 11(a)(2) were held to be

invalid, on the grounds that in both of those cases “there was

evidence at the time of the entry of the plea that the defendant

thought he or she could appeal from the guilty plea.” Id. (citing Cortez, 973 F.2d at 767-69; United States v. Carrasco,

786 F.2d 1452, 1453-55 (9th Cir. 1986)) (emphasis added).

We found Cortez and Carrasco inapplicable to the facts

alleged in Floyd because approximately three months had

elapsed between the defendant’s unconditional guilty plea and

the ambiguous statement at the sentencing hearing: 

Though the exchange at the sentencing hearing was

ambiguous regarding whether she could appeal the

suppression motion, it occurred over three months

after Floyd entered her unconditional guilty plea.

While we are sympathetic to Floyd’s predicament,

she points to no evidence in the record that her plea

was involuntary at the time that she entered it. Her

newly-expressed desire to appeal three months later

cannot somehow relate back to her plea hearing.

That her plea was voluntary when entered is controlling; that Floyd may have changed her mind later

does not render her plea invalid. 

3182 UNITED STATES v. LOPEZ-ARMENTA
Id. (footnotes omitted). 

[4] We are persuaded that this appeal is controlled by

Floyd. While numerous distinctions between the cases might

be drawn, at its core, Buchanan addresses the situation in

which confusion regarding appellate rights arises contemporaneously with the waiver, while Floyd applies where the defendant attempts to have later confusion “relate back” to his

waiver. Accordingly, we hold that Lopez knowingly and voluntarily waived his right to appeal the suppression ruling, and

his waiver was not affected by the district court’s ambiguous

statement three months later at the sentencing hearing. 

IV

For the foregoing reasons, the appeal is dismissed. 

DISMISSED.

UNITED STATES v. LOPEZ-ARMENTA 3183