United States v. Bell

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Bell No. 02-1329 ELECTRONIC CITATION: 2003 FED App. 0414P (6th Cir.)

File Name: 03a0414p.06 _________________ COUNSEL

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

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UNITED STATES OF AMERICA , X Plaintiff-Appellee, -

- - No. 02-1329

v. -

> ,

KENNETH BELL, -

Defendant-Appellant. -

N

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 01-80027—Bernard A. Friedman, District Judge.

Submitted: October 23, 2003

Decided and Filed: November 21, 2003

Before: KENNEDY and GIBBONS, Circuit Judges;

ALDRICH, District Judge.*

*

The Honorab le Judge Ann Aldrich, United States District Judge for the Northern District of O hio, sitting by designation.

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ON BRIEF: James W. McGinnis, Detroit, Michigan, for specifies the sole method by which one may preserve such a Appellant. Patricia G. Gaedeke, ASSISTANT UNITED right. A motions panel of this Court directed the parties to STATES ATTORNEY, Detroit, Michigan, for Appellee. address this issue in their briefings on the merits.

_________________ II. Analysis OPINION Federal Rule of Criminal Procedure 11(a)(2) provides:

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With the approval of the court and the consent of the KENNEDY, Circuit Judge. Defendant Kenneth Bell, who government, a defendant may enter a conditional plea of pleaded guilty to being a felon knowingly in possession of a guilty or nolo contendere, reserving in writing the right, firearm in violation of 18 U.S.C. § 922(g), appeals the district on appeal from the judgment, to review the adverse court’s denial of a pre-plea motion to suppress evidence. For determination of any specified pretrial motion. A the reasons explained below, we AFFIRM the judgment and defendant who prevails on appeal shall be allowed to defendant’s sentence on the ground that defendant failed to withdraw the plea. preserve his right to appeal the district court’s denial of his suppression motion. (2001).1 This Circuit has held that a defendant who pleaded guilty may not appeal an adverse ruling on a pre-plea motion I. Background to suppress evidence “unless he has preserved the right to do so by entering a conditional plea of guilty in compliance A federal grand jury indicted defendant Bell on one count with” Rule 11(a)(2). United States v. Herrera, 265 F.3d 349, of being a felon knowingly in possession of a firearm in 351 (6th Cir. 2001). We reasoned that “[c]onditional guilty violation of 18 U.S.C. § 922(g). Defendant filed a motion to pleas . . . represent an exception to the general rule that a suppress the firearm that police officers seized from guilty plea waives all non-jurisdictional defects in the predefendant ’s vehicle during the course of a traffic stop. After plea proceedings.” Id. To preserve one’s right to appeal a a two-day hearing, the district court denied defendant’s pre-plea motion under Rule 11(a)(2), there must be: 1) a motion to suppress, finding that the officers’ actions did not conditional guilty plea in writing; 2) that reserves the right to violate the Fourth Amendment. Defendant subsequently appeal a specified pre-trial motion; and 3) that evidences the pleaded guilty pursuant to a written plea agreement. government’s consent. See id. at 352. Consistent with that agreement, the district court sentenced defendant to twenty-seven months of imprisonment followed Here, the written Rule 11 plea agreement into which by three years of supervised release. defendant entered with the government does not expressly reserve defendant’s right to appeal the district court’s denial Defendant timely filed a notice of appeal challenging the judgment and the district court’s order denying defendant’s motion to suppress. The government moved to dismiss this 1 Our analysis relies on the 2001 version of the Federal Rules of appeal on the ground that defendant waived his right to appeal Criminal Procedure as that was the version that was in effect at the time the denial of his suppression motion when he failed to comply of the events underlying this app eal. W e note tha t the 20 02 amendme nts with Federal Rule of Criminal Procedure 11(a)(2)–which mostly reorganized Rule 11, except for a few substantive changes inapp licable here.

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of the pre-plea suppression motion.2 Rather, defendant the record at the plea hearing.3 Moreover, at the plea hearing, contends that he reserved his right to appeal this motion in a defendant acknowledged that the record–in addition to the document entitled “Guilty Plea Questionnaire and Certificate plea agreement–contained the promises that secured his guilty of Counsel,” which the district court had given defendant plea. On the other hand, both the guilty plea questionnaire before the plea hearing. A provision of that document, as and the plea agreement provide that the plea agreement is the originally drafted, advised defendant that he would not be only existing agreement between the government and able to appeal the district court’s denial of any pre-trial defendant. Furthermore, the plea agreement states that motions on non-jurisdictional issues if he were to plead defendant’s attempt to withdraw or challenge his guilty plea guilty, unless he were specifically to reserve that right in the is a repudiation of that agreement. plea agreement. However, defendant, in a hand-written note, amended this provision to provide: “I will be able to appeal In short, defendant contends that he complied with Rule from the judge’s denial of my pre-trial motion to suppress 11(a)(2) because the guilty plea questionnaire is a written evidence.” Additionally, defendant argues that both the document that expressly reserves defendant’s right to appeal district court and the government consented to the guilty plea the suppression motion and that evidences the government’s questionnaire’s express reservation of defendant’s right to consent. Even taking these assertions as true, however, appeal the suppression motion when the district court, with no defendant nevertheless failed to satisfy a fundamental objection from the government, entered that document into requirement of Rule 11(a)(2) when he entered an unconditional plea of guilty, not a conditional plea of guilty

2 3 Regarding the waiver of defendant’s right to appeal, the plea Defendant also argues that the district court and the government agreement simply specifies that defendant “agrees not to appeal or affirmed defendant’s right to appeal the suppression motion when the otherwise challenge in any proceeding the constitutionality or legality of district court, with no o bjec tion from the governm ent, advised defendant any part of the sentencing guidelines . . . [and] the accuracy of any factor at sentencing that he had “a right to ap peal the sentence in this matter.” stipulated to in this agreement or the attached worksheets.” Following the However, on its face, this erron eous advisement pertains only to maxim of expressio unius est exclusio alterius, we could construe defendant’s purp orted right to ap peal his sentence, no t to any right to defendant’s express waiver of only his right to appeal his sentence as an appeal the denial of the supp ression motio n. In any event, even if the implicit preservation of his right to appeal his pre-plea suppression misstatement were some how to refere nce d efendant’s allege d right to motion. However, Rule 11(a)(2) mandates that defendant not get the appeal the suppression issue, neither that misstatement nor the benefit of such silence; rather, to preserve his right to appeal the pre-plea gove rnment’s acquiescence in it could reinstate or preserve such a right suppression motio n, defendant must have expressly and affirmative ly if defend ant waived it via non-comp liance with Rule 11(a)(2). Herrera , reserved that right. See United States v. Kirksey, 118 F.3d 1113, 1115 265 F.3d at 351 (The district court’s misstatement that defendant had the (6th Cir. 19 97) (Rule 11(a)(2) barred direct review of the district court’s right to appeal a pre-trial suppression motion was insufficient to trump denial of defenda nt’s motion to suppress because defendant entered an defendant’s waiver of that right via non-compliance with Rule 11.); unconditional guilty plea whereby he explicitly waived his right to appeal United States v. Fleming, 239 F.3d 76 1, 764 (6th Cir. 2001) (B ecause the “any writs of habeas corpus concerning any matters pertaining to the district court lacked the power under Rule 11 to modify the plea prosecution including all motions, defenses, probable cause agreement once it had accepted it, the court’s advisement that the determinatio ns, and objections to the C ourt’s entry of judgment.”). defendant had a right to appeal could not restore that right where the accepted plea agreem ent had waived it.).

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contingent upon an appeal of the suppression motion.4 See United States v. Pickett, 941 F.2d 411, 416-17 (6th Cir. 1991) (“[B]ecause a guilty plea bars any subsequent non- jurisdictional attack on the conviction,” defendant’s “failure to enter a conditional guilty plea prevents him from raising his argument against his conviction upon appeal.”); United States v. Bahhur, 200 F.3d 917, 923 (6th Cir. 2000) (“[A] defendant forecloses all subsequent non-jurisdictional appeals to his conviction by pleading guilty or nolo contendere”; thus, “by failing to enter into a conditional plea under Rule 11(a)(2),” defendant waived his right to appeal the district court’s denial of his pre-trial motion to dismiss.). Defendant contends neither that he had entered a conditional plea of guilty nor that he believed that he had entered such a plea.

In sum, we AFFIRM the judgment and defendant’s sentence on the ground that defendant failed to preserve his right to appeal the district court’s denial of his pre-plea suppression motion when he did not enter a conditional plea of guilty, as Rule 11(a)(2) requires.

4 We hold only that defendant failed to satisfy Rule 11(a)(2)’s requirement of entering a conditional guilty plea. We leave open whether defendant satisfied the rule’s other requirements, such as whether the written guilty plea questionnaire–rather than the plea agreement–could provide the requisite documentation.