USA v. Ronald Gabel

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 14, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-10133
Non-Argument Calendar
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D. C. Docket No. 0:10-cr-60168-JIC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD GABEL,
Defendant-Appellant.
_________________________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________________________
(May 14, 2012)
Before EDMONDSON, WILSON, and FAY, Circuit Judges.
PER CURIAM:

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Ronald Gabel appeals his conviction for possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B), for which he was sentenced to 60 months’
imprisonment. No reversible error has been shown; we affirm.
After he was indicted for possession of child pornography, Gabel filed a
motion to suppress (1) evidence gathered during warrantless searches of his
computer files over shared networks, (2) evidence gathered during the execution
of a search warrant, and (3) his confession. The magistrate judge recommended
denying Gabel’s motion, and the district court adopted the magistrate’s
recommendation. Gabel then pleaded guilty pursuant to a conditional plea
agreement in which he reserved the right to appeal the denial of his motion to
suppress.
Although not raised by either party, we must consider sua sponte whether
Gabel waived his objection to the denial of his motion to suppress by failing to
object to the magistrate’s report and recommendation. Pursuant to Fed.R.Crim.P.
59(b)(2), a defendant’s failure to file specific written objections to a magistrate’s
report within 14 days of being served, or by some other date set by the court,
constitutes a waiver of the defendant’s right to appellate review. Waived claims
are not subject to plain error review. United States v. Lewis, 492 F.3d 1219, 1221
(11th Cir. 2007) (en banc).
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The magistrate’s report informed the parties that they had 14 days to file
written objections to its proposed findings and recommendations. Because Gabel
failed to file such objections, he has waived his right to challenge the denial of his
motion to suppress.*
AFFIRMED.
Gabel’s later attempt -- in his conditional plea -- to reserve the right to appeal the denial*
of his motion to suppress does not affect his waiver. This might raise concerns about whether
Gabel’s guilty plea was entered knowingly and voluntarily, but that issue is not before us on
appeal. See United States v. Pierre, 120 F.3d 1153, 1156-57 (11th Cir. 1997) (concluding that
“[b]ecause [defendant] entered -- and the district court accepted -- this guilty plea only on the
reasonable (but mistaken) belief that [defendant] had preserved the speedy trial issues for appeal,
his plea was, as a matter of law, not knowing and voluntary.”).
3

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