United States v. Chaiken

489 F.2d 1052, 1973 U.S. App. LEXIS 6304

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 26, 1973
• Docket: No. 72-3139
• Status: Published

Opinion

PER CURIAM:

Appellant was indicted under 21 U.S.C.A. § 841(a)(1) on two counts of knowing and intentional distribution of controlled substances and two counts of knowing and intentional possession with intent to distribute controlled substances. After his motion to suppress was denied on May 11, 1972, appellant pleaded guilty to one count of knowing and intentional possession with intent to distribute 468 grams of cocaine. In accepting the plea the District Court approved the Assistant United States Attorney’s agreement to allow appellant to reserve a right to appeal the denial of his motion to suppress. We have recently expressed our strong disapproval of accepting pleas of nolo contendere or pleas of guilty where the right to appeal non-jurisdictional defects has been reserved, United States v. Sepe, 5 Cir., en banc, 1973, 486 F.2d 1044, affirming United States v. Sepe, 5 Cir., 1973, 474 F.2d 784. Therefore we vacate appellant’s conviction and remand to the District Court so that appellant may withdraw his plea and determine whether to plead anew. Santobello v. New York, 1971, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427.