from the United States District Court for the Northern
District of Texas
JOLLY, SMITH, and GRAVES, Circuit Judges.
the denial of his motion to suppress, Roger Olson, II,
pleaded guilty of possession with intent to distribute fifty
grams or more of methamphetamine and possession with intent
to distribute gamma hydroxybutyric acid. On appeal, Olson
challenges the denial of his motion to suppress and the
application of the career-offender guideline, U.S. Sentencing
Guidelines § 4B1.1, based on his two convictions of
possession for sale of methamphetamine in violation of
California Health & Safety Code § 11378.
pleading guilty voluntarily and unconditionally, a criminal
defendant waives his right to challenge any nonjurisdictional
defects in the criminal proceedings that occurred before the
plea. United States v. Stevens, 487 F.3d 232, 238
(5th Cir. 2007). This waiver includes the right to raise any
further objections based on the denial of a motion to
a defendant may enter into a conditional guilty plea
preserving the right to appeal pretrial rulings, the plea
must be in writing and designate the particular issues that
are preserved for appeal; the government must consent to it;
and the district court must approve it. United States v.
Wise, 179 F.3d 184, 186-87 (5th Cir. 1999); see
Fed. R. Crim. P. 11(a)(2); Stevens, 487 F.3d at 238.
A conditional guilty plea may not be implied. Wise,
179 F.3d at 186.
excused variances from these technical requirements where
"the record clearly indicates that the defendant
intended to enter a conditional guilty plea, that the
defendant expressed the intention to appeal a particular
pretrial ruling, and that neither the government nor the
district court opposed such a plea." Stevens,
487 F.3d at 238 (internal quotation marks and citation
omitted); see Wise, 179 F.3d at 187. That is not the
parties did not enter into a written plea agreement.
Moreover, the record contains no suggestion that Olson
intended to plead guilty conditionally, that he expressed an
intent to appeal the suppression ruling, or that the
government and the court assented to a conditional plea.
Finally, Olson does not contend, and it is not apparent from
the transcript of his rearraignment hearing, that his plea
was involuntary. By entering a voluntary, unconditional plea
of guilty, he therefore waived the right to challenge the
denial of the motion to suppress.
contends that a conviction under § 11378 does not
qualify as a controlled-substance offense under § 4B1.1
because it criminalizes an offer to sell a controlled
substance. A defendant is a career offender for purposes of
the guidelines if, among other things, the conviction for
which he is being sentenced is a felony crime of violence
("COV") or controlled-substance offense and he has
at least two felony convictions for either a COV or a
controlled-substance offense. § 4B1.1(a); see
also U.S.S.G. § 4B1.2 (defining the terms in §
4B1.1). In relevant part, § 4B1.2(b) defines a
controlled-substance offense as "an offense under
federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits . . . the possession of a
controlled substance . . . with intent to manufacture,
import, export, distribute, or dispense."
United States v. Castellon-Aragon, 772 F.3d 1023,
1024 (5th Cir. 2014), we held that possession of
methamphetamine for sale, in violation of § 11378, is a
drug-trafficking offense under U.S.S.G. § 2L1.2. We
cited United States v. Valle-Montalbo, 474 F.3d
1197, 1201 (9th Cir. 2007), which concluded that "[b]oth
the plain text of Health & Safety Code § 11378, and
California case law confirm that § 11378 only
criminalizes possession of dangerous drugs with the intent to
sell them." Valle-Montalbo, 474 F.3d at 1201.
Possession of a controlled substance with the intent to sell,
deliver or, distribute it plainly qualifies as a
controlled-substance offense under § 4B1.1. See
United States v. Ford, 509 F.3d 714, 716-17 (5th Cir.
2007), abrogated on other grounds by United States v.
Tanksley, No. 15-11078, 2017 U.S. App. LEXIS 913, at *8
(5th Cir. Jan. 18, 2017) (on petition for rehearing). An
offer to sell a controlled substance, on the other hand, does
not necessarily require the defendant to actually or
constructively possess the controlled substance or to intend
to distribute it. Ford, 509 F.3d at 716-17.
Olson's theory that § 11378 criminalizes offers to
sell a controlled substance is without merit, because a
conviction under § 11378 requires proof of actual or
constructive possession of a controlled substance and the
intent to sell it. Accordingly, the district court properly
applied the ...