## United States Court of Appeals **For the Eighth Circuit**

___________________________
No. 22

- 2120

___________________________
United States of America

Plaintiff - Appellee

v.

Juan Colbert

Defendant - Appellant

____________ Appeal from United States District Court for the Western District of Missouri - Kansas City

____________
Submitted: February 14, 2023 Filed: August 9, 2023

____________ Before SMITH, Chief Judge, STRAS and KOBES, Circuit Judges.

___________ _
KOBES, Circuit Judge

.

After pleading guilty to being a felon in possession of a firearm, Juan Colbert
learned that the detective who testified at his suppression hearing had been indicted-2- for crimes related to an on

- duty shooting

. The district court 1 denied Colbert’s motion to withdraw his plea based on this discovery , and we affirm.

I.

Kansas City Police Department Detective Eric DeValkenaere got a report that
Colbert had assaulted a woman and was driving her car . After tracking Colbert down, DeValkenaere and two other detectives ordered Colbert out and arrested him.
T he woman consent ed to a search of her car , which turned up a gun and a black bag containing ammunition.

Colbert was charged with being a felon in possession of a firearm and later moved to suppress the evidence from the car search. At a suppression hearing,
DeValkenaere testified to the events described above. At a post

- hearing conference,
Colbert said that he wanted to suppress both the gun an d the contents of the bag

. T he M agistrate J udge said that she intended to deny the motion with respect to the gun but had not decided about the bag.

Colbert pleaded guilty before the M agistrate J udge issued a report and
recommendation on his motion. A few months after the plea, a state grand jury indicted DeValkenaere for involuntary manslaughter and armed criminal action in
connection with an on

- duty shooting that happened before the suppression hearing.
The Government eventually turned over records on DeValkenaere , which suggested
that he unlawfully entered the property where the on

- duty shooting happened

. The
records also revealed a 2006 state court suppression ruling, which found that DeValkenaere’s testimony was not credible and that he had violated a witness’s
Miranda rights.

1 The Honorable Greg Kays, United States District Judge for the Western District of Missouri.-3- Colbert moved to withdraw his guilty plea , arguing that the Government’s
failure to disclose information about DeValkenaere affected his decision to plead guilty and his ability to fully l itigate his suppression motion

. The district court
denied the motion

, concluding that he lacked a fair and just reason for withdrawal

. The court found that Colbert had misapprehended the quality of the Government’s
case and reasoned , in relevant part, that “[t]he impeachment information simply improve [d] [Colbert’s] chances, by a small degree, that the motion to suppress might have been granted.” Colbert appeals.

II.

“W hen a defendant has entered a knowing and voluntary plea of guilty at a hearing at which he acknowledged committing the crime, the occasion for setting aside a guilty plea should seldom arise.” United States v. Watson , 883 F.3d 1033, 1037 (8th Cir. 2018) (citation omitted)

. But a defendant may withdraw a guilty plea
if “ the defendant can show a fair and just reason for requesting the withdrawal .”
Fed. R. Crim. P. 11 (d)(2)(B)

. “ Whether a plea was knowing and voluntary is a mixed question of law and fact that we review de novo

. ” United States v. Green
, 521 F.3d 929, 931 (8th Cir. 2008)

. “ We review the court ’ s decision to deny a motion
to withdraw for abuse of discretion. ” Id.

C ol bert argues that the Government’s failure to disclose the information about
DeValkenaere at the suppression stage rendered his plea involuntary and, separately, constituted a fair and just reason for withdrawal. We disagree.

First, Supreme Court precedent forecloses Colbert’s involuntariness argument. In United States v. Ruiz
, the Court concluded that the Constitution did not require the Government to turn over impeachment information before a defendant pleaded guilty

, explaining that “impeachment information is special in
relation to the fairness of a trial , not in respect to whether a plea is voluntary .” 536 U.S. 622, 629 (2002). Simply put, the Government’s non

- disclosure of information
about DeValkenaere did not affect the voluntariness of Colbert’s plea

.-4- Second, the district court did not abuse its discretion when it con c l uded that Colbert lacked a fair and just reason for withdrawal. In general

, “a guilty plea waives all suppression issues not expressly reserved by a conditional plea.” United States

v. McHenry , 849 F.3d 699, 706 (8th Cir. 2017) (cleaned up). Colbert made a
conscious decision to unconditionally plead guilty and w aiv e his ability to relitigate suppression

- related issues. His “ belated desire” to reargue a suppression issue “ is

not [a] fair and just reason warranting t he withdrawal” of his guilty plea. Id. (citation omitted).

Plus

, t he information Colbert discovered about DeValkenaere would have

, as the district court suggested, only marginally improved Colbert’s chances of winning his suppression motion. The material was only indirectly related to his case, amounting to weak propensity evidence that DeValkenaere , as in prior situations, violated Colbert’s rights here

. All told

, the district court didn’t abuse its discretion
when it denied Colbert’s motion. 2

III.

We affirm the judgment of the district court.

______________________________

2 We need not decide whether Brady v. Maryland , 373 U.S. 83 (1963)

, or Giglio v. United States , 405 U.S. 150 (1972)

, apply at the suppression stage . E ven if they did, Colbert pleaded guilty before the district court formally ruled on his suppression motion, meaning he can not show that there “is a reasonable probability that , had [ the evidence ] been disclosed ” to him, “ the result of the [suppression]
pro ceeding would have been different .” United States v. Primm , 63 F.4th 1186, 1192 (8 th Cir. 2023) (c itation omitted ).