* The Honorab le Judge Ann Aldri ch, Unit ed Sta tes Dist ric t Ju dge f

or the N orthe rn D istrict of O hio, sitting b y design ation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0414P (6th C ir.) File Name: 03a04 14p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

KENNETH B ELL , Defenda nt-Appel

lant. X - - - -
> , - - N No. 02-1329

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 01-80027—Bernard A. Friedman, D istrict Judge.

Submitted: October 23, 2003
Decided and Filed: November 21, 2003

Befor e: KENNEDY and GI

BBONS, Circuit Judges; ALDRI CH, District Judge. * 2 United Sta tes v. Be ll No. 02-1329

_________________ COUNSELNo. 02-1329 United Sta tes v. Be ll 3

O N BRIE F: James W. McGinnis, Detroit, Michigan, f o r Appellan t. Patricia G. Gaedeke, ASSI STANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

_________________ OPINION

_________________ KENNEDY, Circuit Judge. Defend ant Kenneth

Bell, who pleaded guilty to being a felon k nowingl y in possession of a firearm in violation of 18 U.S.C. § 922(g), appeals the district court’s denial of a pre-plea motion to suppress evidence. For the reasons explained

below, we AFFI

RM the judgment and defendant’s sentenc e on the g round tha t defend ant faile d to pr eserve his righ

t to appea l the distr ict cour t’s denia l of hi s suppression motion.

I. Backgro und

Afederal grand jury

indicted defendant

Bell on one count of being a felon knowingly

in possess i on of a f

irearm i n violationof 18 U.S.C. § 922(g). Defendant filed a motion to suppress the fire arm that p olice of ficers s ei zed from defendant’s vehicle during the course of a traffic stop. After
a two-day hea

ring, the district court denied defenda nt’s motionto suppress , finding that the officers’ actions did not violate the Fourth Amen dment . Defen dant subse quently pleaded guilty pursuant to a w ritten plea

a greement. Consistentwit

h that agreement, the district court sentence d defendant to twenty-seve

n months of

imprisonment followed by three y ears of supervised release.

Defendant

timely filed a notice of a ppeal c hallenging the judgment an d t he di st ri ct co ur t’ s o rd er de nyi ng def endant’s motionto suppr ess. Th e gove rnment moved to dismis s this appeal on the ground that defendant waived his rig htto appeal the denial of his suppression motionwhen he f ailed to c omply with Federal Rule of Cri mi nal Procedure 11(a)(2)–which 4 United Sta tes v. Be ll No. 02-1329

1 Our analysi s relies on the 2001 version o f the Federa l Rul es of Criminal Proc edure as t hat was th e ve rsi on that was inef

fe ct at th e t ime of the events underly ing this app eal. W e note tha t the 20 02 a men dme nts
mos tly reorganized Rule 11, except for a few s ubstantive chan ges inapp licable here. specifies the sole method by which one may pr

eserve such a right. A motions panel of this Court direc tedthe part ies to address this issue in their briefings on the merits.

II. Analysis

Feder al Rule of Criminal Pr

ocedure 11(a)(2) provid

es:
Withthe approval of the court and the consent o f the gover nment, a defendant may

enter a conditional plea of guilty or nolo conte

ndere, r eservin g in writing the rig ht,
onappeal from the judgment, to revi ew the adverse determination

of any spec ified pretri al mot ion. A defendant wh o prev ails on ap

peal sha ll be allowed to withdraw the plea. (2001). 1 This Circui t has held that a defendant who pleaded guilty may not appeal an adverse ruling on a pr e-plea motion to suppress

evidenc e “unles s he has preserved the right to do
so by e nte ring a c onditional plea of guilty in complianc e with” Rule 11(a)(2). United States v. Herre

ra , 265 F.3d 349, 351 (6th Cir. 2 001). We r easoned that “[c]on

ditional g uilty pleas . . . represent an exception to the genera l rule thata guilty plea waives all non-

ju risdictional defects in the preplea proceedings.” Id. To prese rve one’ s right to

appeal a pr e-plea motion under Rule 11(a)(2), there must be: 1) a conditional guilty

plea in writing; 2) that reserves the right to appeal a specified

pre-trial motion; and 3) that evidences the government’s consent. See id. at 352.
Here, the written Rule 11 plea agreement into whic h defendant entere d with the governme nt does not

expressly
reserve defendant’s right to appeal the district court’s denialNo. 02-1329 United Sta tes v. Be ll 5

2 Regarding the waiv er of defendan t’s right to appeal, the pl ea agreement sim ply spe cif ies tha t def

endant “agr ees n ot t o appeal or other wise ch allenge in any proceeding the constit uti onalityor l egal ity of any part of the sent encing guidelines . . . [and] t he accur acy of

any factor stipulate d to in this agreement or the attached worksheets. ” Following the

max im of express io unius est exclusio alteri us , we could construe defen dan t’s expr ess waiv er of o nly his right to app eal his sente nce as an implic it p reserva ti on of h is rig ht t o appeal his pre- plea suppre ssi on motion. Howev er, Rul e 11(a)(2) mandates that defendant not get t he ben efit of

such sil ence; rather, to preserve his ri ght to appeal the pre-pl ea suppre ssi on motio n, defe nda nt must h ave e xpre ssly and affirmative ly

reserv ed that r ight. Se e United States v. Ki rksey , 118 F. 3d 1113, 1115 (6th Cir. 19 97) (Rule 11(a)( 2) barr ed dir ect revi ew of the distric t court’s denial of defenda nt’s motion to su p press becau se defen dant ent ered an uncondit ional guil ty pl ea whereby he expli citly waiv ed his r ight to appeal “an y wri ts of ha

beas c orpus concer

nin g any matt ers pert aining t o t h e prosec uti on in cludin g all motions, defense s, probabl e cau se deter minatio ns, and obj ection s to the C ourt’s en try of jud gme nt.”). of the p re-plea suppression motion. 2 Rather, defendant contends that he reserved his right to appeal this motionin a document entitled “Guilty Plea

Questionnaire and

Certific ate of Counsel,”

which the

district c ourt h ad given defendant before the plea hearing. A provision of that document, as origina lly drafte d, advise d defend

ant th at he would not be ab le to appeal the district court’s denial of any pre -tria l motions on non-jur

is d ictional issues if he were to plead guilty, unless he

were sp ecifica

lly t o reserve that

right in the plea agreement. However, de fendant, in a hand-written note, amended this provis ion to prov

ide: “I w ill be able to appeal fromthe judge ’s denia

l of my pre-tri al motion to

suppress evidence.”Additiona ll y, defendant argues that both the districtcourt and the government consented to the g uilty plea questionnaire’s express reservation of d efenda

nt’s rig ht to appeal the suppressionmotion when the district court, with no objectionfrom the government, entered t h at docume

nt into 6 United Sta tes v. Be ll No. 02-1329

3 Defendant als o argu es t hat the di stri ct court and the government af fi rme d defen dant’s ri ght to appeal the suppressi on motion when the dist rict cour t, with no o bjec tion from the go vernm ent, adviseddefendant at sente nci ng that he had “a right to ap pea l the sente nce in th is matter.” However, on its face , this erron eou s adv iseme nt perta ins only to defen dan t’s purp orted right to ap pea l h is sente nce, no t to any righ t to appeal the de nial of the supp ression motio n. In any eve nt, even if the misstatement were s ome how to refere nce d efend ant’s allege d right to appeal the suppression is sue, neit her th at mi sstatement nor t he gove rnme nt’s acquiescence in it could reinstat e or preserve such a right if defend ant waiv ed it via non-c omp liance w ith Rule 11( a)(2 ). Herrera , 265 F.3d at 351 (The dis tri ct court ’s mi sst atement that defendant had the rightto appeal a pre-tri al sup pres si on mot ionwas in suf fi cie ntto t

rump defen dan t’s waiver

of th at ri ght vi a non-compli ance wi th Ru le 11.); United States v. Fleming , 239 F.3d 76 1, 764 (6th Cir. 2001) (B ecause the distri ct court

lac ked the power

under Rule 11 to modi fythe pl e a agreement once it

had accep te d it, t

he court’s advisement t hat the defendant had a r igh t t o appeal cou ld no t restore t hat right where the

acce pted plea a greem ent had waived it.). the record at the plea

hearin g. 3 Moreover, at the plea h earing, d efend ant acknowledged that the recor d–in addition to the plea agree ment–con tain ed the pr omises tha

t secure d his guil

ty plea. On the other hand, b oth the guilty plea que stionnaire and the plea agreement

provide that the plea agreement is the only existing agreement between the government and defenda nt. Furthermore, the plea agr eement states that defendant’s attempt to withdrawor challenge his guilty plea is a repudiation of that agreement.

Inshort, defend a nt conten ds that he complied

with Rule 11(a)(2) bec ause the guilty plea questionnaire is a written document that expressly reserve s defenda nt’s rig ht to appeal the suppression motionand that evidences the government’s consent. Even tak

ing thes e asser

tions a s true, however, defendant nevertheless failed to satisfy a fundamental requirement

of Rule 11(a)(2) when he entered a n unconditional plea of gui lty,not a cond itional ple a of gu

iltyNo. 02-1329 United Sta tes v. Be ll 7

4 We hold only that d

efendant failed

to satis fy Ru

le 11(a) (2)’s requirement of enterin

g a conditional g

uilty plea. We leave open whether defendant

satisfied the rule’s other require ments, such

as whether the written guilty

plea questionnaire–rather than the plea agreement–co

uld provide the req

uisite documentation. contingent

upon an appeal of the suppression motion. 4 Se e United States v. Pickett

, 941 F.2d 411, 416- 17 (6th

Cir. 1991) (“[B]ec ausea guilt

y pl ea bars any

subsequent nonjurisdictional attack on

the conviction,” defendant’s “failure t o en ter a conditional guilty plea prevents him from raising his argume

nt agai nst his con

viction up on appea

l.”); United States v. Bahhur , 200 F .3d 91 7, 923 (6th C ir. 20 00) ( “[A ] de fendant forecloses all subseq uent non- jurisdict ional app eals to his convictionby p leading guilty or nolo contender

e”; thus, “by failing to enter into a con

ditio nal plea unde

r 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 ha

d entere d a condit

ional pl ea of guilty nor that he be lieved that he had entered such a plea.

Insum, we AFFIRM the judg ment and defendant’s
se ntence o n the gr

ound that d

efenda nt failed to prese rve his right to appeal the district cou rt’s denial of his pre-plea suppressionmotion when he did not enter a conditional plea of guilty, as Rule 11( a)(2) requires.