UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-41018

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

VERSUS

JOSEPH MARKS WISE,

Defendant - Appellant.

Appeal from the United States District Court

For the Eastern District of Texas

June 18, 1999

Before EMILIO M. GARZA, DeMOSS, and PARKER, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-appellant Joseph Marks Wise challenges his

conviction for possession of cocaine with intent to distribute.

Because Wise pleaded guilty and failed to reserve the right to

appeal the district court’s pretrial rulings, we affirm Wise’s

conviction.

I.

Pursuant to two separate search warrants, police in Beaumont,

Texas searched two adjoining apartments, numbers 13 and 14, at 1010

North Fifth Street. In Apt. 13, they encountered Wise as he
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attempted to flush powdered cocaine down a toilet. Wise had keys

to Apt. 14 in his possession. In Apt. 14, police found 175 grams

of cocaine base and 89 grams of powdered cocaine. Apt. 14 also

contained some of Wise’s personal effects -- a cordless phone,

shoes, pants, and some legal papers.

Wise was charged with possession of cocaine with intent to

distribute and possession of cocaine base with intent to

distribute. He moved to suppress the fruits of the searches of

both apartments. The district court suppressed the personal

effects but refused to suppress the drugs. Pursuant to a plea

agreement (which does not contain any express written reservation

of Wise’s right to appeal), Wise then pleaded guilty to possession

of cocaine with intent to distribute in exchange for the

government’s motion to dismiss the cocaine base count. He was

sentenced to 121 months of imprisonment, three years of supervised

release, and fined $15,000.

II.

A voluntary and unconditional guilty plea has the effect of

waiving all nonjurisdictional defects in the prior proceedings.

See, e.g., McMann v. Richardson, 397 U.S. 759, 766, 90 S. Ct. 1441,

1446 (1970); Busby v. Holman, 356 F.2d 75, 77 & n.3 (5th Cir. 1966)

(collecting cases). That waiver includes, in this case, Wise’s

objection to the legality of the search of his apartment. When a

trial court denies a motion to suppress evidence and the defendant

subsequently enters an unconditional plea of guilty, the defendant
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has waived the right to raise further objection to that evidence.

See, e.g., McMann, 397 U.S. at 766, 90 S. Ct. at 1446; United

States v. Smallwood, 920 F.2d 1231, 1240 (5th Cir. 1991).

Conditional pleas may be permitted, and this is the usual

procedural avenue for preserving the defendant’s objection to a

dispositive pretrial ruling and obviating the need for a full

trial. But conditions to a plea are not to be implied.

Conditional pleas must be made in writing, consented to by the

prosecution, and approved by the court. See Fed. R. Crim. P.

11(a)(2). Furthermore, the plea agreement must explicitly

designate particular issues intended to be preserved for appeal.

See United States v. Bell, 966 F.2d 914, 916 (5th Cir. 1992);

United States v. Hausman, 894 F.2d 686, 689 (5th Cir. 1990). The

requirements of consent by the government and approval by the court

mean that there is no absolute right to enter a conditional guilty

plea, and neither the prosecution nor the court has any duty to

advise a defendant of the availability of such a procedure. See,

e.g., Bell, 966 F.2d at 916; United States v. Daniel, 866 F.2d 749,

751 (5th Cir. 1989).

This Court has, in appropriate circumstances, relaxed the

technical conditional plea requirements of Rule 11(a)(2). Harmless

Rule 11 violations are expressly excused by the Rule, which

provides that “[a]ny variance from the procedures required by this

rule which does not affect substantial rights shall be

disregarded.” Fed. R. Crim. P. 11(h). We can excuse variances

from Rule 11(a)(2) when the spirit of that rule has been fulfilled
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by a clear indication on the record of the defendant’s intention to

plead conditionally, a clear indication on the record of the

defendant’s intention to appeal particular pretrial rulings, and

the acquiescence of both the prosecution and the court. See, e.g.,

Bell, 966 F.2d at 916. Thus in United States v. Fernandez, 887

F.2d 564 (5th Cir. 1989) (summary calendar), we entertained an

appeal in a case in which the government conceded that the

defendant had actually reserved the right to appeal as part of the

plea agreement. The record did not reflect strict compliance with

Rule 11(a)(2), as the written conditional plea was not part of the

record, and the record did not suggest that the district court had

approved a conditional plea. Guided by Rule 11(h), we disregarded

these procedural defects and considered the merits of the appeal.

See Fernandez, 887 F.2d at 566 n.1.

Wise’s situation is distinguishable from Fernandez. Wise does

not argue that the record is deficient in failing to reflect an

actual reservation of a right to appeal the district court’s

suppression ruling, and the government does not concede that Wise’s

plea was conditional. Moreover, the written plea agreement, which

is part of the appellate record, contains absolutely no mention of

an anticipated appeal, fails to specifically refer to the district

court’s denial of Wise’s motion to suppress evidence, and contains

no reservation of rights of any kind. At Wise’s plea hearing, the

district judge orally reviewed each provision of the plea

agreement, and Wise and his lawyer both orally confirmed that the

written plea agreement “is the entire plea agreement which has been
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negotiated by and between the parties, and that no other promise

has been made or implied by or for either the defendant or the

government.” Thus, based on the unambiguous appellate record

before us we conclude that Wise’s guilty plea was unconditional.

If the record is ambiguous as to whether the defendant’s plea was

conditional, we may question voluntariness of the plea, vacate the

conviction, and remand for repleading. See Bell, 966 F.2d at 916-

17. “But if the record contains no manifestation of a reservation

of appellate rights, the plea is presumptively unconditional, and

an appellate court may not reach the merits of the defendant’s

appeal.” Id. at 917.

III.

In sum, in the absence of any reservation of conditions, a

guilty plea constitutes a waiver of the right to challenge

nonjurisdictional pretrial rulings on appeal. We reiterate the

admonition in Bell that “the preferred practice is for the district

court to advise the defendant that by pleading guilty he waives his

right to appeal non-jurisdictional pretrial issues.” 966 F.2d at

917 n.3. We must affirm this conviction, however, because the

record unambiguously demonstrates that Wise’s plea agreement did

not reserve the right to contest the district court’s suppression

ruling on appeal.

AFFIRMED.