PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4795

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROBERT FITZGERALD,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. George L. Russell, III, District Judge. 

(1:13-cr-00605-GLR-1)

Argued: March 22, 2016 Decided: April 27, 2016

Before TRAXLER, Chief Judge, and Wilkinson and Keenan, Circuit 

Judges.

Vacated and remanded by published opinion. Chief Judge Traxler 

wrote the opinion in which Judge Wilkinson and Judge Keenan 

joined.

ARGUED: Michael Alan Wein, Greenbelt, Maryland, for Appellant. 

Michael Clayton Hanlon, OFFICE OF THE UNITED STATES ATTORNEY, 

Baltimore, Maryland, for Appellee. ON BRIEF: Andrew R. Szekely, 

LAW OFFICES OF ANDREW R. SZEKELY, LLC, Greenbelt, Maryland, for 

Appellant. Rod J. Rosenstein, United States Attorney, H. 

Brandis Marsh, Jr., Special Assistant United States Attorney, 

OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for 

Appellee.
2

TRAXLER, Chief Judge:

With assurance from the district court that he was not 

waiving his right to appeal the court’s earlier denial of a 

suppression motion, Robert Fitzgerald pled guilty to one count 

each of possessing a firearm as a felon, possessing heroin with 

intent to distribute, and possessing marijuana with intent to 

distribute. See 18 U.S.C. § 922(g)(1); 21 U.S.C. § 841(a). He 

now appeals his convictions, arguing that the district court 

erred in denying the suppression motion. He alternatively 

contends that if he did not preserve his right to appeal the 

denial of the motion, we should vacate his guilty plea. Because 

we agree with Fitzgerald’s alternative position, we vacate his 

convictions and remand for further proceedings.

I.

A Maryland grand jury returned an indictment against 

Fitzgerald for one count each of possessing a firearm as a 

felon, possessing heroin with intent to distribute, and 

possessing marijuana with intent to distribute. During pretrial 

proceedings, Fitzgerald moved to suppress certain evidence and 

moved for a Franks hearing regarding what he alleged to be 

knowing and material false statements in an application for a 

warrant to search Fitzgerald’s residence. See Franks v. 

Delaware, 438 U.S. 154 (1978). After taking testimony and 

hearing argument, the district court denied his motions.
3

Fitzgerald later rejected a plea offer made by the 

government but nonetheless indicated his willingness to enter an 

“open plea” to the charges in the indictment. The parties 

therefore moved forward without a written agreement, and no 

writing addressed issues that would be preserved for appeal.

On April 15, 2014, Fitzgerald appeared before the district 

court to plead guilty, and the district court began its Rule 11 

plea colloquy. Of particular significance to this appeal was a 

discussion between the court, defense counsel, and Fitzgerald 

concerning what appellate rights Fitzgerald would retain after 

pleading guilty. Defense counsel stated that he was sure that 

Fitzgerald did not wish to waive his right to appeal his 

sentence, and the court confirmed that he was not waiving that 

right. The following exchange then took place:

[DEFENSE COUNSEL]: And it certainly is one of 

the reasons the Court might guess that he wants to 

appeal is to take up the issue of the suppression 

hearing, and I think he’s hearing you say maybe he’s 

waiving that by entering a plea of guilty, and that’s 

not the case.

Do you understand?

THE COURT: Right. So, in other words, if I end 

up accepting your plea of guilty in this case, and I’m 

asking you all these questions, it could be that your 

ability to argue that your plea was not entered into 

both a knowing and voluntary manner would be to a 

certain extent compromised, because you’re 

acknowledging that you’re entering into it in a 

knowing and voluntary manner right now.
4

Do you understand what I am saying?

S.S.A. 33. When Fitzgerald stated he did not understand, 

defense counsel took a moment to confer with his client, after 

which Fitzgerald initially stated that he had no further 

questions regarding how his decision to plead guilty would 

affect his ability to appeal. When Fitzgerald then stated that 

he actually had one further question, the court again allowed 

him to confer with his attorney, after which counsel stated that 

he did not believe any further advice on the topic would be 

needed.

Nevertheless, the district court briefly continued on that 

subject:

THE COURT: Okay. Now, of course, you retain your 

ability to be able to appeal any sentence that I would 

impose, because you haven’t waived that.

You retain your right to challenge . . . any 

sentence that I end up imposing. You certainly retain 

your ability to appeal any decision the Court has made 

with regard to a motion to suppress tangible or 

derivative evidence to the extent that the Court ruled 

against you. 

[DEFENSE COUNSEL]: I just do want to put on the 

record, it is sort of an appellate issue, that we have 

pending in the state courts a petition for writ of 

coram nobis, which would attack one of the predicate 

convictions, and he would no longer be a career 

offender.

I just want to put on the record that nothing we 

say in this plea agreement is going to disallow us 

from pursuing that if we succeed and bring it back 

under Section 2255.
5

S.S.A. 34-35 (emphasis added). The district judge asked the 

prosecutor if the government agreed that Fitzgerald would not be 

so barred if his attack on his predicate conviction was 

successful. The prosecutor, who had previously been silent 

throughout the entire discussion of appellate rights, answered 

affirmatively.

As the plea colloquy continued, the district court 

eventually asked the prosecutor to review the essential elements 

of each of the charged offenses and the facts supporting those 

elements. At the end of the colloquy, the court asked both 

counsel if they believed Fitzgerald had been properly advised. 

Defense counsel stated that he did. However, the prosecutor 

stated that he believed there needed to be a record made of the 

fact that Fitzgerald reviewed and rejected a plea offer from the 

government. The court proceeded to question Fitzgerald about 

the plea offer, and Fitzgerald stated that he reviewed it with 

his attorney, understood it, discussed it with his attorney, and 

rejected it. The court then asked the prosecutor, “Anything 

else?” S.S.A. The prosecutor responded, “No, Your Honor, 

that’s perfect.” S.S.A. 49.

The district court then accepted Fitzgerald’s plea. The 

court eventually sentenced Fitzgerald to an aggregate term of 

130 months’ imprisonment. 
6

Fitzgerald now appeals his convictions, challenging the 

denial of his suppression motion and his motion for a Franks

hearing. In their initial briefs to us, both parties assumed 

that Fitzgerald’s plea was a valid conditional plea that 

reserved his right to appeal these issues. See Fed. R. Crim. P. 

11(a)(2). Nevertheless, we ordered the parties to file 

supplemental briefs on this question.

II.

A.

The parties both argue that Fitzgerald entered a valid 

conditional guilty plea and urge us to address the merits of his 

appeal. We conclude, however, that no valid conditional guilty 

plea was entered.

It is the general rule that “[w]hen a defendant pleads 

guilty, he waives all nonjurisdictional defects in the 

proceedings conducted prior to entry of the plea, and thus has 

no non-jurisdictional ground upon which to attack that judgment 

except the inadequacy of the plea.” United States v. Smith, 640 

F.3d 580, 591 (4th Cir. 2011) (internal quotation marks 

omitted). However, Federal Rule of Criminal Procedure 11(a)(2) 

provides an exception:

With the consent of the court and the government, a 

defendant may enter a conditional plea of guilty or 

nolo contendere, reserving in writing the right to 

have an appellate court review an adverse 

determination of a specified pretrial motion. A 
7

defendant who prevails on appeal may then withdraw the 

plea.

We have explained that the writing requirement “‘ensure[s] 

careful attention to any conditional plea’ and [makes] plain to 

the parties and the court ‘that a particular plea was in fact 

conditional’ as well as ‘precisely what pretrial issues have 

been preserved for appellate review.’” United States v. Bundy, 

392 F.3d 641, 645 (4th Cir. 2004) (quoting Fed. R. Crim. P. 11 

advisory note). The government-consent requirement “‘ensure[s] 

that a conditional plea will be allowed only when the decision 

of the court of appeals will dispose of the case either by 

allowing the plea to stand or by such action as compelling 

dismissal of the indictment or suppressing essential evidence.’” 

Id. (quoting Fed. R. Crim. P. 11 advisory note (alteration in 

original)). And the court-approval requirement similarly 

“ensure[s] that ‘the defendant is not allowed to take an appeal 

on a matter which can only be fully developed by proceeding to 

trial.’” Id. (quoting Fed. R. Crim. P. 11 advisory note).1 

 1 In addition to the rule’s explicit requirements, we 

have held that a conditional plea must “be limited to casedispositive issues.” United States v. Bundy, 392 F.3d 641, 645 

(4th Cir. 2004). This additional requirement serves the 

expressed purposes of conditional pleas “to limit the use of 

conditional pleas based on two separate, but related, concerns: 

first, that the conditional plea promote judicial economy, and 

second, that the conditional plea not be employed in a manner 

that renders appellate review difficult or impossible.” Id. at 

646.
8

Although Rule 11(a)(2) purports to require that the 

reservation of rights to appeal the issues in question be in 

writing, we have deemed the writing requirement satisfied when 

the reservation is “so clearly shown on the record that there is 

no doubt that a conditional plea was agreed to.” United States 

v. Abramski, 706 F.3d 307, 314 (4th Cir. 2013) (internal 

quotation marks omitted); see also United States v. Yasak, 884 

F.2d 996, 1000 (7th Cir. 1989) (“The transcript of the plea 

hearing provides a writing of sorts.”). This approach is 

consistent with the notion that “an appellate court can pardon 

the informalities of a conditional plea so long as the record 

demonstrates that the spirit of Rule 11(a)(2) has been 

fulfilled.” United States v. Bell, 966 F.2d 914, 916 (5th Cir. 

1992). Yet it also “comports with the general rule that 

conditions to a plea are not to be implied.” Bundy, 392 F.3d at 

645 (internal quotation marks omitted).2 In contrast to the 

somewhat flexible approach we have taken regarding the writing 

requirement, we have noted that “[t]here is no doubt that the 

 2 Notwithstanding our creation of this exception to the 

writing requirement, we emphasize that clearly the better 

practice is to set out the reservation of rights in writing. 

See United States v. Yasak, 884 F.2d 996, 1000 (7th Cir. 1989) 

(“District courts should follow Rule 11’s literal language and 

insist on written pleas under Rule 11(a)(2). The parties 

likewise should insist on them. This is especially so for 

defendants, for they have the most to lose if a plea is held 

invalid.”). 
9

second and third requirements under the Rule – Government 

consent and court approval – are mandatory and cannot be 

avoided.” Id.; see also id. (“The Government must affirmatively 

agree to the plea, and the district court must exercise its own 

judgment in approving it.”). 

In this case, even assuming that the rule’s other 

requirements were satisfied, the government-consent requirement 

was not. 

Fitzgerald maintains that the requirement was satisfied 

when the prosecutor remained silent during the colloquy in which 

the district court stated that Fitzgerald would retain the right 

to appeal the denial of his suppression motion. Fitzgerald also 

attempts to draw support from the fact that the government takes 

the position on appeal that the government-consent requirement 

was satisfied. For its part, the government concedes that a 

valid conditional plea was entered only if the record 

demonstrates its affirmative assent to the conditional nature of 

the plea. But the government argues that the record in fact 

demonstrates its affirmative assent. We disagree with both 

parties.

Initially, we note that while Rule 11(a)(2) does not 

explicitly define what amounts to the “consent of . . . the 

government,” the rule’s advisory notes are informative. At the 

time the rule addressing conditional guilty pleas was 
10

promulgated, conditional guilty pleas were already permitted in 

a number of circuits, including the Second Circuit. See United 

States v. Carrasco, 786 F.2d 1452, 1454 n.3 (9th Cir. 1986). In 

United States v. Burke, 517 F.2d 377 (2d Cir. 1975), the Second 

Circuit had held that “silence on [the government’s] part is 

sufficient assent” to a conditional plea agreement. Id. at 379. 

Rule 11’s Advisory Committee notes explain, however, that Rule 

11(a)(2)’s specific requirement that the reservation of the 

right to appeal certain issues must be in writing would allow 

courts “to avoid entry of a conditional plea without the 

considered acquiescence of the government (see United States v. 

Burke, supra, holding that failure of the government to object 

to entry of a conditional plea constituted consent)”). Fed. R.

Crim. P. 11 advisory note. 

This comment indicates that Rule 11(a)(2) was intended to 

be “a departure from Burke and an insistence on unequivocal 

government acquiescence.” Carrasco, 786 F.2d at 1454 n.3; see

Yasak, 884 F.2d at 999. Accordingly, for the government-consent 

requirement to be satisfied, “[t]he Government must 

affirmatively agree to the [conditional] plea,” Bundy, 392 F.3d 

at 645, meaning that there must be “direct assent requiring no 

inference or implication,” United States v. Pierre, 120 F.3d 

1153, 1156 (11th Cir. 1997). See Bundy, 392 F.3d at 645 

(“[C]onditions to a plea are not to be implied.” (internal 
11

quotation marks omitted)). “[S]ilence or inaction by the 

government is not consent.” Pierre, 120 F.3d at 1156. But see

Bell, 966 F.2d at 916 (suggesting that government’s silence 

could be sufficient under certain circumstances). 

The record here falls well short of demonstrating 

unequivocal government acquiescence to a conditional plea. 

Nowhere in the plea colloquy transcript does the court or either 

party make reference to a conditional guilty plea or Rule 

11(a)(2).3 The only statement from defense counsel that even 

arguably relates to the issue is murky at best. Defense counsel 

stated, “[I]t certainly is one of the reasons the Court might 

guess that [Fitzgerald] wants to appeal is to take up the issue 

of the suppression hearing, and I think [Fitzgerald is] hearing 

you say maybe he’s waiving that by entering a plea of guilty, 

and that’s not the case.” S.S.A. 33 (emphasis added). 

Especially given that the record contains no previous suggestion 

that Fitzgerald would somehow reserve the right to appeal that 

ruling, it is somewhat unclear whether “that’s not the case” 

referred to a belief by Fitzgerald that he retained the right to 

appeal or to the district court’s possible suggestion that 

Fitzgerald was waiving the right to appeal that issue. No 

 3 Nor does the record even reflect any statements by 

either side prior to the prior colloquy suggesting that 

Fitzgerald’s guilty plea would be conditional. 
12

clarification immediately followed that would have alerted the 

prosecutor that defense counsel was taking the position that 

Fitzgerald was retaining the right to appeal that ruling.

The only clear statement concerning Fitzgerald’s right to 

appeal the suppression issue came two pages later in the 

transcript, after defense counsel had already stated that he did 

not believe any further discussion of appellate rights was 

needed. The court stated that Fitzgerald retained the right to 

“[c]hallenge any sentence that I end up imposing” and “certainly 

retain[ed the] ability to appeal any decision the Court has made 

with regard to a motion to suppress tangible or derivative 

evidence to the extent that the Court ruled against [him].” 

S.S.A. 35. Immediately following that statement, defense 

counsel raised a separate issue regarding appellate rights, and 

the subject of the right to appeal the denial of the motion to 

suppress was never revisited. 

As we have noted, the government concedes that for there to 

be a valid conditional plea, the record must reflect its 

affirmative assent to the conditional plea. The government 

contends that this affirmative assent came in the form of the 

prosecutor’s response to a question asked by the district court 

at the end of the plea colloquy. The court had asked the 

prosecutor if he believed Fitzgerald had been properly advised 

during the plea colloquy, to which the prosecutor responded that 
13

he believed there needed to be a record made of the fact that 

Fitzgerald reviewed and rejected a plea offer from the 

government. The judge then asked Fitzgerald several questions 

about the plea offer and Fitzgerald answered them. At that 

point, the court asked the prosecutor, “Anything else?” and the 

prosecutor answered, “No, Your Honor, that’s perfect.” S.S.A. 

49. 

The government maintains that the “that’s perfect” comment 

represented an acceptance by the prosecutor of the entire Rule 

11 colloquy. Since the colloquy included a statement by the 

court that Fitzgerald had reserved his right to appeal the 

denial of his suppression motion, the government contends the 

“that’s perfect” comment constituted an assent to Fitzgerald’s 

reservation of rights. We disagree.4 First of all, it is far 

from clear that the “that’s perfect” comment did not simply 

refer to the record the court had just finished making 

concerning Fitzgerald’s knowledge and consideration of the 

government’s plea offer. And even if the prosecutor intended 

 4 We note that the fact that the government is taking 

the position on appeal that the “that’s perfect” comment 

satisfied the government-consent requirement is not a substitute 

for its actual assent during the district court proceedings. 

Rule 11(a)(2) makes clear that the government’s consent is a 

precondition for a valid conditional guilty plea. See Fed. R. 

Crim. P. 11(a)(2) (“With the consent of the court and the 

government, a defendant may enter a conditional plea of guilty . 

. . .”). In the absence of assent by the government in the 

district court, no conditional guilty plea was validly entered. 
14

his “that’s perfect” comment to refer to the entire plea 

colloquy, we have already explained that nothing in the record 

affirmatively indicates the specificity contemplated by Rule 

11(a)(2). Accordingly, it would require inference upon 

inference for us even to conclude that the “that’s perfect” 

comment demonstrated the prosecutor’s agreement with the judge’s 

earlier statement concerning Fitzgerald’s right to appeal the 

suppression ruling. Suffice it to say that the “that’s perfect” 

statement is far from the “unequivocal government acquiescence” 

to a conditional guilty plea that Rule 11(a)(2) requires. We 

therefore conclude that the mandatory government-consent 

requirement was never satisfied, and the plea on which the 

judgment appealed from is based is not a valid conditional plea. 

See Bundy, 392 F.3d at 645.

B.

Insofar as Fitzgerald did not enter a valid conditional 

guilty plea, the question of whether the district court erred in 

denying his suppression motion is not properly before us. See

id. (“Absent a valid conditional guilty plea, we will dismiss a 

defendant’s appeal from an adverse pretrial ruling on a nonjurisdictional issue.”). Nevertheless, we still must consider 

whether “an unconditional plea has been entered or” whether “no 

valid plea has been entered.” Id. at 649 (alteration and 

internal quotation marks omitted). We may treat Fitzgerald’s 
15

plea as unconditional only if he “entered such a plea, including 

a waiver of appeal rights, ‘knowingly, intelligently, and with 

sufficient awareness of the relevant circumstances and likely 

consequences.’” Id. (quoting United States v. Ruiz, 536 U.S. 

622, 629 (2002)). 

The parties agree that if Fitzgerald’s plea was not a valid 

conditional guilty plea, we cannot treat it as a knowing and 

voluntary unconditional plea in light of the facts that the 

district court apparently understood Fitzgerald’s plea to be 

conditioned on his right to appeal the denial of his suppression 

motion, and that Fitzgerald entered his plea in reliance on the 

assurance that he had preserved that issue. We agree with the 

parties on this point. See Pierre, 120 F.3d at 1156. 

Accordingly, since we have neither a valid conditional plea nor 

a valid unconditional plea, we must vacate the judgment. See

Bundy, 392 F.3d at 649. On remand, Fitzgerald can decide 

whether to plead guilty again or whether to proceed to trial. 

See id. at 650.

III.
16

For the foregoing reasons, we vacate the judgment of 

conviction and remand for further proceedings consistent with 

this opinion.5

VACATED AND REMANDED

 5 We express no opinion regarding the merits of 

Fitzgerald’s substantive arguments.