UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
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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)
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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.
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