Unpublished Disposition, 927 F.2d 610 (9th Cir. 1988)

MEMORANDUM^** 

On November 18, 1988, Border Patrol Agents stopped a truck driven by the appellant, Jose Luis Morgan-Huerta. In the truck the agents found 204 pounds of marijuana. As part of a plea agreement, Morgan-Huerta pled guilty to one count of possession with intent to distribute the 204 pounds of marijuana. In accord with the plea agreement, the district court sentenced Morgan-Huerta to a prison term of twenty-seven months, and a sixty-month period of supervised release.

Morgan-Huerta now appeals the district court's denial of his motion to correct or vacate sentence. He contends that his counsel was ineffective in failing to inform him that the search of his truck may have been constitutionally infirm and, by extension, in failing to move to suppress the evidence because of the potentially unconstitutional search.

In Tollett v. Henderson, 411 U.S. 258 (1973), the Supreme Court held that " [w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the guilty plea." Id. at 267. Rather, " [a] defendant may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases." Hudson v. Moran, 760 F.2d 1027, 1030 (9th Cir.), cert. denied, 474 U.S. 981 (1985).

Here, Morgan-Huerta challenges neither the voluntariness of his plea nor that the advice received from his attorney fell outside the acceptable range of competence. This alone may be fatal to his claim. See id. Moreover, our independent review of the record reveals no reason to believe that Morgan-Huerta was unaware "of the relevant circumstances and likely consequences" of his plea. See Brady v. United States, 397 U.S. 742, 748 (1970). Likewise, the record reflects that the advice of counsel received by Morgan-Huerta was more than adequate. See Tollett, 411 U.S. at 268 ("A prospect of plea bargaining, the expectation or hope of a lesser sentence, or the convincing nature of the evidence against the accused are considerations that might well suggest the advisability of a guilty plea without elaborate consideration of whether pleas in abatement, such as unconstitutional grand jury selection procedures, might be factually supported.").

Accordingly, the district court's denial of Morgan-Huerta's motion to correct or vacate sentence is

AFFIRMED.