IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50007

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ROBERTO AARON OLIVAS,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:09-CR-1402-1

Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Roberto Aaron Olivas pled guilty to conspiracy to possess marijuana with

intent to distribute and possession of marijuana with intent to distribute. He

was sentenced to 18 months in prison. He now appeals the district court’s denial

of his motion to suppress certain evidence he contends was unconstitutionally

obtained. We hold that Olivas waived his right to appeal by entering an

unconditional guilty plea.

United States Court of Appeals

Fifth Circuit

F I L E D

January 26, 2011

Lyle W. Cayce

Clerk

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.

Case: 10-50007 Document: 00511362054 Page: 1 Date Filed: 01/26/2011
No. 10-50007

A voluntary and unconditional guilty plea waives all nonjurisdictional

defects in the prior proceedings, including the right to raise any further

objections based on a district court’s denial of a motion to suppress. United

States v. Stevens, 487 F.3d 232, 238 (5th Cir. 2007). Although a defendant may

plead guilty conditionally and preserve appeal rights, the plea must be in

writing, must have the consent of the prosecution and approval of the court, and

must explicitly designate the issues being preserved for appeal. Fed. R. Crim.

P. 11(a)(2); United States v. Wise, 179 F.3d 184, 186-87 (5th Cir. 1999).

There was no written plea agreement in this case. In addition, there is no

other evidence in the record that Olivas expressed an intent to appeal such that

any technical noncompliance with Rule 11(a)(2) might be excused. See Stevens,

487 F.3d at 238. Although Olivas asserts that he reserved his right to appeal,

citing a page of the rearraignment transcript, no such reservation appears at

that or any other page of the transcript. Olivas’s opening brief offers no other

basis for pursuing his appeal, and he did not file a reply brief responding to the

Government’s assertion of waiver. As the record lacks any evidence of a

reservation of rights, Olivas may not appeal the district court’s suppression

ruling. See Wise, 179 F.3d at 187.

Olivas’s appeal is entirely without merit and we dismiss it as frivolous.

See 5th Cir. R. 42.2. In addition, given the misstatement of the record regarding

Olivas’s reservation of his right to appeal, as well as the failure to file a reply

brief addressing the waiver issue, we order counsel to show cause within 30 days

of the date of this opinion why this court should not impose sanctions or take

other disciplinary action. See Fed. R. App. P. 46(c); United States v. Gaitan, 171

F.3d 222, 223-24 (5th Cir. 1999).

APPEAL DISMISSED AS FRIVOLOUS; COUNSEL ORDERED TO

SHOW CAUSE WITHIN 30 DAYS WHY SANCTION SHOULD NOT BE

IMPOSED OR OTHER DISCIPLINARY ACTION TAKEN.

2

Case: 10-50007 Document: 00511362054 Page: 2 Date Filed: 01/26/2011