UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4632
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RONALD L. PHILLIPS,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Frederick P.
Stamp, Jr., Senior District Judge. (3:06-cr-00047-FPS)
Submitted: September 17, 2008 Decided: October 20, 2008
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Kevin D. Mills, MILLS & WAGNER, PLLC, Martinsburg, West
Virginia, for Appellant. Sharon L. Potter, United States
Attorney, Wheeling, West Virginia; Thomas O. Mucklow, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald L. Phillips was indicted on one count of attempting
by use of the internet to persuade or entice a minor to engage
in sexual activity (Count 1) and one count of traveling in
interstate commerce for the purpose of engaging in sexual
conduct with a minor (Count 2). See 18 U.S.C. §§ 2422(b),
2423(b). Pursuant to a plea agreement, Phillips pled guilty to
Count 1. The district court thereafter sentenced him to a term
of 120 months imprisonment. Phillips now appeals the district
court’s denial of his motion seeking specific performance of a
prior plea agreement that he contends is binding on the
government. For the reasons set forth below, we vacate the
judgment of conviction and remand for further proceedings.
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 a
conditional plea is not valid if it purports to preserve for
appeal an issue that is not case-dispositive. Id. at 647. An
issue is case-dispositive only if (1) an appellate ruling in the
defendant’s favor would require on remand either a dismissal of
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the charges or suppression of essential evidence, and (2) an
appellate ruling in the government’s favor would require an
affirmance of the judgment of conviction. Id. at 648.
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. In their supplemental briefs, the parties acknowledge
that the issue presented by this appeal – i.e., Phillips’
entitlement to specific performance of the prior plea agreement
– is not case-dispositive. For that reason, we hold that this
appeal is not properly before us. The parties further
acknowledge, correctly in our view, that because Phillips 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
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