UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4702

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

BRIAN PORTIS, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Richard L. Williams, Senior 

District Judge. (3:08-cr-00034-RLW-1) 

Submitted: May 4, 2009 Decided: June 17, 2009 

Before SHEDD, Circuit Judge, C. Arlen BEAM, Senior Circuit Judge 

of the United States Court of Appeals for the Eighth Circuit, 

sitting by designation, and Joseph F. ANDERSON, Jr., United 

States District Judge for the District of South Carolina, 

sitting by designation. 

Vacated and remanded by unpublished per curiam opinion. 

Jennifer M. Newman, Richmond, Virginia; C. David Whaley, 

Richmond, Virginia, for Appellant. Chuck Rosenberg, United 

States Attorney, Alexandria, Virginia, Richard D. Cooke, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Richmond, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Brian Portis was indicted on one count of possession of a 

firearm by an unlawful user in violation of 18 U.S.C. 

§ 922(g)(3) and one count of possession of marijuana in 

violation of 21 U.S.C. § 844. These charges arose from evidence 

obtained during a police search of Portis’ home on June 13, 

2007. Portis moved to suppress the evidence obtained during the 

search of his home as unlawful under the Fourth Amendment. 

After an evidentiary hearing on Portis’ Fourth Amendment claim, 

the district court denied the motion to suppress. Portis then 

entered a purported conditional plea, reserving the right to 

appeal the denial of his suppression motion. 

 Generally, a defendant who pleads guilty waives all 

nonjurisdictional defects in the proceedings conducted prior to 

entry of the plea. United States v. Bundy, 392 F.3d 641, 644 

(4th Cir. 2004). However, in limited circumstances, a defendant 

may enter a conditional guilty plea under Federal Rule of 

Criminal Procedure 11(a)(2) and preserve certain pretrial issues 

for appeal. Interpreting Rule 11(a)(2), we held in Bundy that, 

among other requirements, a conditional plea must 1) be offered 

in writing, 2) have the affirmative consent of the Government, 

and 3) have the approval of the district court. Bundy, 392 F.3d 

at 645. 

2 
 After the parties filed their appellate briefs, we 

requested supplemental briefs on the issue of whether the 

purported conditional plea in this case is proper in light of 

Bundy and United States v. Phillips, 296 Fed. Appx. 349 (4th 

Cir. 2008). In its supplemental brief, the Government concedes 

that the requirements for a conditional guilty plea were not 

fully satisfied but contends that any defect in Portis’ 

conditional guilty plea should not bar review of the merits of 

his appeal. In his supplemental brief, Portis largely adopts 

the arguments of the Government. 

 Both parties concede that the writing requirement was not 

satisfied. Next, the parties argue that the Government’s 

approval of the plea is clear from its failure to object to the 

conditional guilty plea. However, we stated in Bundy that the 

Government must affirmatively agree to the plea. See 392 F.3d 

at 645. Finally, the parties note that the court was willing to 

approve of the conditional guilty plea, and therefore, the third 

requirement is satisfied. However, the record is less than 

clear on this point.* Because the record is not clear on whether 

 *

 At first, the court appeared willing to accept the 

conditional guilty plea. See J.A. 125. The court then appeared 

to conduct a Rule 11 colloquy. See J.A. 128-130. However, the 

court immediately thereafter declared that it was conducting a 

bench trial based on the evidence presented at the evidentiary 

hearing and declared that Portis was guilty of the charged 

offense beyond a reasonable doubt. See J.A. 131. Portis’ 

(Continued) 

3 
4 

the district court approved of the conditional guilty plea, we 

cannot agree that the third requirement – court approval – has 

been satisfied. 

 For these reasons, we hold that this appeal is not properly 

before us. Because Portis only entered into the plea agreement 

and pled guilty based on the express understanding that he would 

be able to pursue this appeal, the appropriate course under 

Bundy is for us to vacate the judgment of conviction and remand 

this case to the district court for further proceedings. See Id. 

at 649-50. 

 Accordingly, we vacate the judgment of conviction and 

remand this case to the district court for further proceedings 

consistent with this opinion. We dispense with oral argument 

because the facts and legal contentions are adequately presented 

in the materials before the court and argument would not aid the 

decisional process. 

VACATED AND REMANDED

 

counsel also agreed to the court finding Portis guilty beyond a 

reasonable doubt on the evidence that had been submitted. Id. 

Further confusing this matter, the judgment reflects that Portis 

pled guilty rather than having been found guilty. See J.A. 135. 

Both parties now argue on appeal that Portis entered a 

conditional guilty plea.