UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4878
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TORRICK JOHNTRELLE RODGERS, a/k/a Trelle,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:11-cr-00087-FL-1)
Argued: December 11, 2014 Decided: December 23, 2014
Before MOTZ and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Elisa Cyre Salmon, SALMON & GILMORE, LLP, Lillington,
North Carolina, for Appellant. Joshua L. Rogers, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Torrick Johntrelle Rodgers pled guilty, without a plea
agreement, to several counts involving the distribution and
possession of cocaine and cocaine base. The district court then
sentenced him to incarceration for 211 months. Rodgers appeals,
contending that his plea was not knowing and voluntary, and that
the district court erred in denying his motion to suppress. 1 For
the reasons that follow, we affirm.
I.
On December 3, 2010, the Government sought and was granted
a search warrant for Rodgers’ home in Farmville, North Carolina.
The application was based on two years of investigation and
surveillance, and included evidence obtained from two trash
pulls conducted at Rodgers’ home on November 24, 2010 and
December 3, 2010.
While executing the warrant on the evening of December 3,
law enforcement officers seized from the home cocaine, cocaine
1
Because we conclude that Rodgers did not enter a
conditional guilty plea, we do not review the district court’s
denial of his motion to suppress. See Fed. R. Crim. P.
11(a)(2); United States v. Abramski, 706 F.3d 307, 314 (4th
Cir.), cert. granted, 134 S. Ct. 421 (2013), and aff’d, 2014 WL
2676779 (June 16, 2014) (“[A]bsent a valid conditional guilty
plea, we will dismiss a defendant’s appeal from an adverse
pretrial ruling on a non-jurisdictional issue.”) (citation
omitted).
2
base, marijuana, and a variety of drug paraphernalia. On August
10, 2011, Rodgers was indicted for one count of conspiracy to
distribute and possess with intent to distribute cocaine and
cocaine base, in violation of 21 U.S.C. § 846; two counts of
distribution of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1); and one count of possession with intent to
distribute cocaine and cocaine base, in violation of 21 U.S.C.
§ 841(a)(1).
Rodgers moved to suppress evidence obtained during the
search of his house on December 3, 2010. He argued that the
Government produced insufficient evidence of probable cause for
the search warrant. Rodgers contended that the evidence from
trash pulls conducted on November 24 and December 3 should not
be considered in determining probable cause because they
constituted an unlawful intrusion into the curtilage of the
home.
A federal magistrate judge held a hearing on the motion.
At that hearing, the Government conceded that evidence from the
November 24 trash pull should be excluded from consideration.
But the Government contended that the December 3 trash pull had
been from the curb, and that the warrant application still
established probable cause without the November 24 evidence.
The magistrate judge agreed and so recommended denying the
motion. The magistrate found that the December 3 trash pull had
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been from the curb, and held that, even excluding evidence
obtained in the November 24 trash pull, probable cause supported
the warrant application. The district court adopted the
magistrate judge’s findings and recommendation, and denied
Rodgers’ motion to suppress.
On April 18, 2012, Rodgers pled guilty, without a plea
agreement, to all four counts in the indictment. After
conducting a Rule 11 plea colloquy, the district court accepted
the plea, determining that it was knowing and voluntary.
A probation officer prepared a presentence report, to which
Rodgers objected. Following several amendments to the report
and several continuances, the district court ultimately held the
sentencing hearing on November 7, 2013. The court determined
that the Guidelines range was 262 to 327 months on counts one
and four, and that counts two and three carried a statutory
maximum of 240 months. The court sentenced Rodgers to 211
months in prison, and five years’ supervision and addiction
counseling. Rodgers timely noted an appeal. 2
2
Rodgers has also filed a pro se motion for leave to submit
a supplemental brief pursuant to Anders v. California, 386 U.S.
738 (1967). We deny the motion. Because Rodgers is represented
by counsel who has filed a merits brief on his behalf, not a
brief pursuant to Anders, he is not entitled to file a
supplemental brief. See United States v. Penniegraft, 641 F.3d
566, 569 n.1 (4th Cir. 2011).
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II.
Rodgers asserts that his unconditional guilty plea was not
knowing and voluntary because he entered his plea under the
mistaken assumption that he could pursue an appeal on the denial
of his suppression motion. He does not claim that ineffective
assistance of counsel or any Government promises caused his
mistaken assumption. Rather, he asserts that the district court
did so by erroneously advising him that he had not waived any
appeal rights.
Because Rodgers challenges the validity of his plea for the
first time on appeal, we review for plain error. United States
v. Martinez, 277 F.3d 517, 524-25 (4th Cir. 2002). Accordingly,
Rodgers must show: (1) that an error occurred; (2) that was
plain; (3) that affected his substantial rights; and (4) that
affected the fairness, integrity, or public reputation of
judicial proceedings. See United States v. Olano, 507 U.S. 725
(1993). To prove effect on his substantial rights, Rodgers must
demonstrate “a reasonable probability that, but for the error,
he would not have entered the plea.” United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004).
A.
When a defendant pleads guilty, he “forgoes not only a fair
trial, but also other accompanying constitutional guarantees.”
United States v. Ruiz, 536 U.S. 622, 628 (2002) (citation
5
omitted). A defendant who enters a valid unconditional plea
waives all rights to challenge an adverse pretrial ruling on a
non-jurisdictional issue. Abramski, 706 F.3d at 314. Thus,
“direct review of an adverse ruling on a pretrial motion is only
available if the defendant expressly preserves that right by
entering a conditional guilty plea pursuant to Rule 11(a)(2)” of
the Federal Rules of Criminal Procedure. United States v.
Bundy, 392 F.3d 641, 645 (4th Cir. 2004) (quotation and citation
omitted).
A valid conditional plea under Rule 11(a)(2) “must be
offered in writing,” “must specify the adverse pretrial rulings
that the defendant seeks to appeal,” and “Government consent and
court approval[] are mandatory and cannot be avoided.” Id.
Both parties agree that Rodgers did not enter a conditional
plea. As Rodgers concedes, his plea was not in writing, he did
not orally specify the suppression motion that he now seeks to
appeal, and neither the Government nor the district court
expressly approved the reservation of that particular appellate
right.
“The alternatives to a conditional plea being entered are
either that an unconditional plea has been entered or that no
[valid] plea has been entered.” Id. at 649 (citation omitted).
Thus, because Rodgers’ plea was -- by its own terms and by
6
Rodgers’ concession -- not conditional, the remaining inquiry is
whether his plea was unconditional or invalid.
B.
For a guilty plea to be valid, the Constitution imposes
“the minimum requirement that [the] plea be the voluntary
expression of [the defendant’s] own choice.” Brady v. United
States, 397 U.S. 742, 748 (1970). An unconditional plea must be
entered “knowingly, intelligently, and with sufficient awareness
of the relevant circumstances and likely consequences.” Bundy,
392 F.3d at 649 (citation omitted). “In evaluating the
constitutional validity of a guilty plea, courts look to the
totality of the circumstances surrounding [it], granting the
defendant’s solemn declaration of guilt a presumption of
truthfulness.” United States v. Moussaoui, 591 F.3d 263, 278
(4th Cir. 2010) (citation and internal quotations omitted).
Rodgers’ principal assertion is that his plea was not
knowing and voluntary because statements made by the district
court led him to believe that he had retained a right to
appellate review of the denial of his suppression motion. In so
asserting, Rodgers relies primarily on the following statement
made by the court during the Rule 11 hearing: “[T]here being no
plea agreement but a determination to plead guilty, you haven’t
waived any of your appeal rights, but you’re going to not have a
trial if I accept your plea.” We find no plain error in this
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statement: it was made by the district court after Rodgers had
pled guilty. Because Rodgers had not waived his appeal rights
relating to jurisdictional or sentencing issues by pleading
guilty, the court’s statement was accurate.
Further, Rule 11 “does not require a district court to
inform a defendant that, by pleading guilty, he is waiving his
right to appeal any antecedent rulings or constitutional
violations.” United States v. White, 366 F.3d 291, 299 n.6 (4th
Cir. 2004) (alterations and citation omitted). A knowing and
voluntary plea “does not require complete knowledge of the
relevant circumstances, but permits a court to accept a guilty
plea, with its accompanying waiver of various constitutional
rights, despite various forms of misapprehension under which a
defendant might labor.” Ruiz, 536 U.S. at 630. To the extent
that Rodgers labored under a misapprehension about preservation
of appellate review of his suppression motion, the district
court’s statements at best confirmed, in Rodgers’ mind, those
misapprehensions -- they did not give rise to Rodgers’
misconceptions. 3
3
Rodgers also relies on statements made by the court and by
his counsel at sentencing to argue that he was unaware that he
had waived his right to appeal the denial of his suppression
motion when entering his guilty plea. Appellant Br. 17-18. But
these statements were made months after Rodgers had already
entered his unconditional guilty plea. Thus, the statements
could not have motivated him in entering the plea. Moreover, if
(Continued)
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C.
Finally, Rodgers contends that, under Bundy, a court will
not treat an unconditional guilty plea as voluntary if a
defendant mistakenly enters it believing he has preserved
appellate rights, when in fact he has not. Appellant Br. 15.
Bundy does not stand for this broad proposition.
In that case, a defendant entered a conditional guilty plea
that comported fully with the requirements of Rule 11(a)(2).
However, we held that only case-dispositive issues could be
preserved in a conditional plea. Only two of the three issues
preserved in Bundy’s conditional plea were case-dispositive. We
concluded that the non-case-dispositive issue could not be
separated from the two case-dispositive ones, and that the
presence of one non-case-dispositive issue rendered the entire
conditional plea invalid. Bundy, 392 F.3d at 649. Thus, we
further held that although Bundy’s conditional plea was not
valid, it could not be treated as an unconditional plea either.
Thus, we reasoned that since the district court “accepted
Bundy’s plea as a conditional plea[,] [b]ased on this record, we
[could] not treat this plea as a knowing and voluntary
unconditional plea.” Id. at 649 (emphasis in original). Bundy
the court did plainly err by misadvising Rodgers -- and we do
not find that it did -- Rodgers has not shown, and cannot show,
that he would not have entered the plea but for such advice.
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therefore establishes only that if a district court accepts a
defendant’s conditional plea, and that plea is later determined
not to be valid, we will not treat the plea as unconditional.
That is not what happened here. Rodgers concedes that his
plea was not conditional: It did not comport with the
requirements of Rule 11(a)(2), he did not state that his plea
was conditional at any point during his plea colloquy, and he
did not expressly condition his oral plea on the preservation of
appellate review of any issues. Because the plea accepted by
the district court in this case was unconditional, affirming
that unconditional plea does not undermine the bargain Rodgers
struck with the Government -- indeed, there is no bargain to
undermine here, because there was no plea agreement. 4
4
Rodgers also relies on three unpublished cases to argue
that a defendant who pleads guilty mistakenly believing he may
challenge a pretrial motion on appeal does not enter a voluntary
unconditional plea. See United States v. LeCraft, 544 Fed.
App’x 185, 2013 WL 5754379 (4th Cir. 2013); United States v.
LeSane, 498 Fed. App’x 363, 2012 WL 5519992 (4th Cir. 2012); and
United States v. Ochoa, 353 Fed. App’x 390, 2009 WL 4049127
(11th Cir. 2009). Of course, none of these cases has
precedential value. See United States v. Hood, 628 F.3d 669,
672 (4th Cir. 2010). Moreover, in each of them, unlike the case
at hand, the defendant overtly conditioned his plea on the
preservation of a particular issue for appeal.
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IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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