No. 90-56250.

United States Court of Appeals, Ninth Circuit.

Before FLETCHER and CANBY, Circuit Judges, and McNICHOLS,**

MEMORANDUM***

On December 12, 1989 appellant-plaintiff (Brown) pleaded guilty to one count of possession with intent to distribute methamphetamines. On February 14, 1990 Brown was sentenced to 60 months imprisonment. On September 5, 1990, Brown filed a motion challenging the validity of her sentence. In her motion, she requested that her sentence be reduced to time served. The trial court denied that motion following a hearing without argument on October 4, 1990. The basis for the district court's ruling was that Brown was seeking relief based on pre-plea constitutional violations, and that she had not challenged the validity of her guilty plea or the jurisdiction of the court to impose sentence.

On appeal, Brown raises for the first time the issue that she should have been allowed to withdraw her guilty plea. She also alleges that evidence found in her boyfriend's hotel room the day of her arrest was obtained through an illegal search, and that there was insufficient evidence to prove that she participated in a conspiracy.

Brown was initially charged with two counts (1) Count 1 --Conspiracy to possess methamphetamine with intent to distribute, and (2) Count 2--Possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and 846. As part of a plea agreement, Brown pleaded guilty on December 12, 1989 to the possession charge. She did not plead guilty to the conspiracy charge.

The plea agreement included a promise by the government to recommend a downward departure from the applicable Guideline sentence. Brown was advised at the time of entering her plea of her various rights, including her right to a jury trial. Brown advised the district judge that she was giving up her right to appeal any pre-plea violations, and that she was satisfied with the representation provided her by counsel. The court reviewed the factual basis for the plea and concluded that there existed sufficient facts to warrant an acceptance of Brown's guilty plea. The judge advised her that the maximum possible sentence was 20 years, a fine of $1,000,000, and a term of 3-5 years of supervised release.

Brown was sentenced on February 14, 1990. The presentence report calculated a Guideline range of 121 to 151 months. The court did not enhance Brown's sentence for the presence of guns in the hotel room, and she was given a minor adjustment for her role in the offense. The district court concluded that her adjusted Guideline range was 78 to 97 months. The district court followed the government's recommendation of a downward departure and sentenced Brown to 60 months imprisonment. At no time during sentencing did Brown request to withdraw her plea.

Brown's assertion that she should have been allowed to withdraw her guilty plea is not an issue properly before this court. The record shows that Brown did not attempt to withdraw her guilty plea before the district court. The only issue presented to the district court was whether her sentence should be reduced. Because Brown did not raise the question of withdrawing her plea at the district court level, she is precluded from raising it on appeal. United States v. Keller, 902 F.2d 1391, 1395 (9th Cir.1990); Willard v. People of State of California, 812 F.2d 461, 465 (9th Cir.1987).

Prior to Brown's guilty plea, the district court conducted an evidentiary hearing to determine the admissibility of evidence of Brown's guilt which had been obtained during a search of a hotel room occupied by Brown's boyfriend. The court concluded that Brown's boyfriend had rented the hotel room and had validly consented to the search. Brown alleges on appeal that her boyfriend's consent to the search was not voluntary because it was obtained through duress.

When Brown knowingly and intelligently pleaded guilty to the possession charge, she surrendered her right to seek relief based on pre-plea constitutional violations. Hudson v. Moran, 760 F.2d 1027, 1029-30 (9th Cir.), cert. denied, 474 U.S. 981 (1985). Accordingly, we do not consider the merits of her search and seizure claim.

As stated by the district court, Brown did not plead guilty to a conspiracy charge. Therefore, it is irrelevant whether the original conspiracy charge was legally deficient. There is no basis for this court to review Brown's assertions relating to conspiracy issues.

AFFIRMED.