UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4041

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

ROBERT LEON LECRAFT,

 Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Greenville. Louise W. Flanagan, 

District Judge. (4:10-cr-00021-FL-1)

Submitted: October 9, 2013 Decided: October 24, 2013

Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Nardine Mary Guirguis, GUIRGUIS LAW, PA, Raleigh, North 

Carolina, for Appellant. Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Assistant United States 

Attorney, Yvonne V. Watford-McKinney, Assistant United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Robert Leon LeCraft pled guilty to possession of a firearm 

by a convicted felon. See 18 U.S.C. § 922(g). Pursuant to Rule 

11(a)(2) of the Federal Rules of Criminal Procedure, LeCraft 

expressly conditioned the plea on his right to appeal the 

district court’s order denying his pretrial suppression motion. 

See J.A. 270. The court thereafter sentenced LeCraft to a 180-

month imprisonment term. In this appeal, LeCraft argues that the 

court erred by denying his suppression motion and his presentencing motion to substitute counsel. Further, he argues that 

his ability to pursue the appeal is prejudicially affected by 

the unavailability of his Rule 11 plea hearing transcript.1 For 

the reasons set forth below, we vacate the judgment and remand 

for further proceedings.

Rule 59(b) of the Federal Rules of Criminal Procedure 

authorizes referral of a pretrial suppression motion to a 

magistrate judge for a recommendation, and it instructs that a 

party who fails to object to such a recommendation waives the

 1

Post-sentencing, the parties discovered that a transcript 

of the guilty plea hearing is unavailable. In March 2013, we 

issued an order remanding the case to the district court for the 

limited purpose of settling and approving the record as provided 

in Federal Rule of Appellate Procedure 10(c). See J.A. 252-53.

After conducting its review, the court adopted in its entirety 

the government’s statement concerning the Rule 11 hearing and 

adopted LeCraft’s statement in part. See J.A. 264-269.
3

right to review. See, e.g., United States v. Midgette, 478 F.3d 

616, 621-22 (4th Cir. 2007) (holding that the defendant waived 

appellate review of the denial of his suppression motion by 

failing to file proper objections to the magistrate’s report).2

As we explained in Midgette, “[t]he requirement to make 

objections preserves the district court’s role as the primary 

supervisor of magistrate judges, and conserves judicial 

resources by training the attention of both the district court 

and the court of appeals upon only those issues that remain in 

dispute after the magistrate judge has made findings and 

recommendations.” Id. at 621 (citation omitted).

The district court referred LeCraft’s pretrial suppression 

motion to a magistrate judge for an evidentiary hearing. The 

magistrate judge conducted the hearing and filed a Memorandum 

and Recommendation (“M&R”) in which he recommended denying the 

motion. See J.A. 25-137 (hearing transcript), 138-152 (M&R). The 

magistrate judge expressly noted in the M&R that either party 

had 14 days to file written objections and warned them of the 

consequences of failing to do so, see J.A. 151, and the district 

clerk of court – citing Rule 59(b) - attached a similar notice 

to the M&R, see J.A. 152. Both notices expressly informed the 

 2

The waiver doctrine also arises from our cases interpreting 

28 U.S.C. § 636(b). See Midgette, 478 F.3d at 621.
4

parties that a failure to object to the M&R could affect their 

ability to appeal a judgment based on the magistrate’s findings 

and recommendation. LeCraft, who was represented by counsel, 

failed to file written objections to the M&R within the allotted 

time period. See J.A. 153. Finding no clear error with the 

recommendations of the magistrate judge, the court adopted the 

M&R and denied the motion. See J.A. 153-166.

LeCraft thereafter conditionally pled guilty, reserving the 

right to appeal the order denying the suppression motion. 

Unfortunately, LeCraft’s purported reservation of the right to 

appeal the suppression order is illusory because by the time he 

entered the conditional plea agreement he had already waived the 

right to seek appellate review of that order by failing to file 

objections to the M&R.

We faced a circumstance identical to the one presented here 

in United States v. Cagle, 314 Fed. Appx. 617 (4th Cir. 2009). 

Like LeCraft, Cagle failed to file objections to the 

magistrate’s recommendation that his suppression motion be 

denied, but after the district court adopted the recommendation, 

Cagle entered a conditional guilty plea and challenged the 

suppression order on appeal. Applying the waiver rule noted 

above, we held that Cagle waived his right to appeal the 

suppression order, and we affirmed the conviction and sentence. 

See also United States v. Buckbee, 3 Fed. Appx. 563 (7th Cir. 
5

2001) (same). Although not binding, our unpublished disposition 

in Cagle suggests that we should decline to consider LeCraft’s 

challenge to the suppression order and proceed to consider the 

other issues of the appeal.

However, in United States v. Bundy, 392 F.3d 641, 649-50 

(4th Cir. 2004), we held that when a defendant enters a 

conditional plea based on the mistaken belief that he is 

preserving an issue for review that, in fact, is not reviewable 

by means of a conditional plea, no valid plea has been entered, 

and the proper course is to vacate the judgment and remand the 

case to the district court to allow the defendant to either 

plead guilty again or proceed to trial. Bundy is not exactly on 

point because although the defendant there attempted to preserve 

an issue that was improper for conditional plea purposes, he 

could nonetheless eventually appeal the issue if he chose on 

remand to proceed to trial. Here, LeCraft has already waived the 

right to appeal the denial of his pretrial suppression motion by 

failing to file objections to the M&R, and he cannot resurrect 

his right to seek appellate review of the pretrial suppression 

order by proceeding to trial. See United States v. Flores-Duran, 

2013 WL 3286248 (4th Cir. July 1, 2013) (holding that the 

defendant who was convicted after trial waived the right to 
6

appeal the denial of his pretrial suppression motion by failing 

to object to the magistrate’s recommendation).3

Notwithstanding this minor difference, we have carefully 

considered this matter, and we find that the best course under 

the circumstances presented is to follow Bundy and vacate the 

judgment. LeCraft’s plea is specifically premised on his, the 

government’s, and the district court’s mistaken belief 

concerning his appellate rights, and it cannot be treated as a 

knowing and voluntary unconditional plea. See Bundy, 392 F.3d at 

649-50. We believe that a remand for further proceedings is 

especially appropriate because of the unavailability of, and the 

appellate dispute concerning, the Rule 11 transcript. On remand, 

LeCraft should be permitted to enter another guilty plea (which 

is not conditioned on his right to appeal the pretrial 

suppression order) or proceed to trial.4

VACATED AND REMANDED

 3

We note, however, that LeCraft may be able to renew the 

suppression issue if he proceeds to trial. See United States v. 

Raddatz, 447 U.S. 667, 678 n.6 (1980). 

4

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.