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The Honorable Judge Ann Aldrich, United States District Judge for

the Northern District of Ohio, sitting by designation. 

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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0414P (6th Cir.)

File Name: 03a0414p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENNETH BELL,

Defendant-Appellant.

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No. 02-1329

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 01-80027—Bernard A. Friedman, District Judge.

Submitted: October 23, 2003

Decided and Filed: November 21, 2003 

Before: KENNEDY and GIBBONS, Circuit Judges;

ALDRICH, District Judge.*

2 United States v. Bell No. 02-1329

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COUNSEL
No. 02-1329 United States v. Bell 3

ON BRIEF: James W. McGinnis, Detroit, Michigan, for

Appellant. Patricia G. Gaedeke, ASSISTANT UNITED

STATES ATTORNEY, Detroit, Michigan, for Appellee.

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OPINION

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KENNEDY, Circuit Judge. Defendant Kenneth Bell, who

pleaded guilty to being a felon knowingly 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 AFFIRM the judgment and

defendant’s sentence on the ground that defendant failed to

preserve his right to appeal the district court’s denial of his

suppression motion. 

I. Background

A federal grand jury indicted defendant Bell on one count

of being a felon knowingly in possession of a firearm in

violation of 18 U.S.C. § 922(g). Defendant filed a motion to

suppress the firearm that police officers seized from

defendant’s vehicle during the course of a traffic stop. After

a two-day hearing, the district court denied defendant’s

motion to suppress, finding that the officers’ actions did not

violate the Fourth Amendment. Defendant subsequently

pleaded guilty pursuant to a written plea agreement.

Consistent with that agreement, the district court sentenced

defendant to twenty-seven months of imprisonment followed

by three years of supervised release. 

Defendant timely filed a notice of appeal challenging the

judgment and the district court’s order denying defendant’s

motion to suppress. The government moved to dismiss this

appeal on the ground that defendant waived his right to appeal

the denial of his suppression motion when he failed to comply

with Federal Rule of Criminal Procedure 11(a)(2)–which

4 United States v. Bell No. 02-1329

1

Our analysis relies on the 2001 version of the Federal Rules of

Criminal Procedure as that was the version that was in effect at the time

of the events underlying this appeal. We note that the 2002 amendments

mostly reorganized Rule 11, except for a few substantive changes

inapplicable here. 

specifies the sole method by which one may preserve such a

right. A motions panel of this Court directed the parties to

address this issue in their briefings on the merits. 

II. Analysis

Federal Rule of Criminal Procedure 11(a)(2) provides: 

With the approval of the court and the consent of the

government, a defendant may enter a conditional plea of

guilty or nolo contendere, reserving in writing the right,

on appeal from the judgment, to review the adverse

determination of any specified pretrial motion. A

defendant who prevails on appeal shall be allowed to

withdraw the plea. 

(2001).1 This Circuit has held that a defendant who pleaded

guilty may not appeal an adverse ruling on a pre-plea motion

to suppress evidence “unless he has preserved the right to do

so by entering a conditional plea of guilty in compliance

with” Rule 11(a)(2). United States v. Herrera, 265 F.3d 349,

351 (6th Cir. 2001). We reasoned that “[c]onditional guilty

pleas . . . represent an exception to the general rule that a

guilty plea waives all non-jurisdictional defects in the preplea proceedings.” Id. To preserve one’s right to appeal a

pre-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 which

defendant entered with the government does not expressly

reserve defendant’s right to appeal the district court’s denial
No. 02-1329 United States v. Bell 5

2

Regarding the waiver of defendant’s right to appeal, the plea

agreement simply specifies that defendant “agrees not to appeal or

otherwise challenge in any proceeding the constitutionality or legality of

any part of the sentencing guidelines . . . [and] the accuracy of any factor

stipulated to in this agreement or the attached worksheets.” Following the

maxim of expressio unius est exclusio alterius, we could construe

defendant’s express waiver of only his right to appeal his sentence as an

implicit preservation of his right to appeal his pre-plea suppression

motion. However, Rule 11(a)(2) mandates that defendant not get the

benefit of such silence; rather, to preserve his right to appeal the pre-plea

suppression motion, defendant must have expressly and affirmatively

reserved that right. See United States v. Kirksey, 118 F.3d 1113, 1115

(6th Cir. 1997) (Rule 11(a)(2) barred direct review of the district court’s

denial of defendant’s motion to suppress because defendant entered an

unconditional guilty plea whereby he explicitly waived his right to appeal

“any writs of habeas corpus concerning any matters pertaining to the

prosecution including all motions, defenses, probable cause

determinations, and objections to the Court’s entry of judgment.”). 

of the pre-plea suppression motion.2 Rather, defendant

contends that he reserved his right to appeal this motion in a

document entitled “Guilty Plea Questionnaire and Certificate

of Counsel,” which the district court had given defendant

before the plea hearing. A provision of that document, as

originally drafted, advised defendant that he would not be

able to appeal the district court’s denial of any pre-trial

motions on non-jurisdictional issues if he were to plead

guilty, unless he were specifically to reserve that right in the

plea agreement. However, defendant, in a hand-written note,

amended this provision to provide: “I will be able to appeal

from the judge’s denial of my pre-trial motion to suppress

evidence.” Additionally, defendant argues that both the

district court and the government consented to the guilty plea

questionnaire’s express reservation of defendant’s right to

appeal the suppression motion when the district court, with no

objection from the government, entered that document into

6 United States v. Bell No. 02-1329

3

Defendant also argues that the district court and the government

affirmed defendant’s right to appeal the suppression motion when the

district court, with no objection from the government, advised defendant

at sentencing that he had “a right to appeal the sentence in this matter.”

However, on its face, this erroneous advisement pertains only to

defendant’s purported right to appeal his sentence, not to any right to

appeal the denial of the suppression motion. In any event, even if the

misstatement were somehow to reference defendant’s alleged right to

appeal the suppression issue, neither that misstatement nor the

government’s acquiescence in it could reinstate or preserve such a right

if defendant waived it via non-compliance with Rule 11(a)(2). Herrera,

265 F.3d at 351 (The district court’s misstatement that defendant had the

right to appeal a pre-trial suppression motion was insufficient to trump

defendant’s waiver of that right via non-compliance with Rule 11.);

United States v. Fleming, 239 F.3d 761, 764 (6th Cir. 2001) (Because the

district court lacked the power under Rule 11 to modify the plea

agreement once it had accepted it, the court’s advisement that the

defendant had a right to appeal could not restore that right where the

accepted plea agreement had waived it.). 

the record at the plea hearing.

3

 Moreover, at the plea hearing,

defendant acknowledged that the record–in addition to the

plea agreement–contained the promises that secured his guilty

plea. On the other hand, both the guilty plea questionnaire

and the plea agreement provide that the plea agreement is the

only existing agreement between the government and

defendant. Furthermore, the plea agreement states that

defendant’s attempt to withdraw or challenge his guilty plea

is a repudiation of that agreement. 

In short, defendant contends that he complied with Rule

11(a)(2) because the guilty plea questionnaire is a written

document that expressly reserves defendant’s right to appeal

the suppression motion and that evidences the government’s

consent. Even taking these assertions as true, however,

defendant nevertheless failed to satisfy a fundamental

requirement of Rule 11(a)(2) when he entered an

unconditional plea of guilty, not a conditional plea of guilty
No. 02-1329 United States v. Bell 7

4We hold only that defendant failed to satisfy Rule 11(a)(2)’s

requirement of entering a conditional guilty plea. We leave open

whether defendant satisfied the rule’s other requirements, such as

whether the written guilty plea questionnaire–rather than the plea

agreement–could provide the requisite documentation. 

contingent upon an appeal of the suppression motion.4 See

United States v. Pickett, 941 F.2d 411, 416-17 (6th Cir. 1991)

(“[B]ecause a guilty plea bars any subsequent nonjurisdictional attack on the conviction,” defendant’s “failure

to enter a conditional guilty plea prevents him from raising

his argument against his conviction upon appeal.”); United

States v. Bahhur, 200 F.3d 917, 923 (6th Cir. 2000) (“[A]

defendantforecloses allsubsequent non-jurisdictional appeals

to his conviction by pleading guilty or nolo contendere”; thus,

“by failing to enter into a conditional plea under 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 had entered a conditional plea of

guilty nor that he believed that he had entered such a plea. 

In sum, we AFFIRM the judgment and defendant’s

sentence on the ground that defendant failed to preserve his

right to appeal the district court’s denial of his pre-plea

suppression motion when he did not enter a conditional plea

of guilty, as Rule 11(a)(2) requires.