[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 9, 2010
No. 09-16497 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-00053-CR-KOB-TMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCUS JEROME PROVENS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(September 9, 2010)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Marcus Jerome Provens appeals his convictions for possession of crack
cocaine with intent to distribute and possession of a firearm during a drug
trafficking offense, pursuant to 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c).
Provens asserts the district court erred in denying his motion to suppress.
Although Provens acknowledges in his brief that he entered into a guilty plea, he
does not suggest he wishes to challenge that plea as involuntary. We review de
novo whether a voluntary unconditional guilty plea waives the ability to appeal the
rulings on a particular pre-trial motion. United States v. Patti, 337 F.3d 1317, 1320
n.4 (11th Cir. 2003).
“Generally, a voluntary, unconditional guilty plea waives all
nonjurisdictional defects in the proceedings.” Id. at 1320. In order to preserve a
nonjurisdictional challenge, a defendant must, with the consent of the court and the
government, enter a conditional plea which reserves, in writing, the right to have
an appellate court review an adverse determination of a specified pretrial motion.
Fed. R. Crim. P. 11(a)(2); United States v. Betancourth, 554 F.3d 1329, 1331-32
(11th Cir. 2009) (holding a defendant’s expressed desire to reserve an issue for
appeal did not convert an unconditional plea into a conditional one in the absence
of a written agreement and the government’s consent). We will not consider a
defendant’s challenge to the district court’s denial of a motion to suppress if that
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issue is not preserved in a conditional plea. United States v. McCoy, 477 F.2d 550,
551 (5th Cir. 1973);1 see also United States v. Wai-Keung, 115 F.3d 874, 877 (11th
Cir. 1997) (declining to discuss a suppression issue that was beyond the challenges
that the conditional guilty plea permitted). However, “an attack on the voluntary
and knowing nature of the plea can be sustained.” Wilson v. United States, 962
F.2d 996, 997 (11th Cir. 1992).
Provens’s plea before the district court was unconditional, and he does not
dispute on appeal that it was knowingly and voluntary. Accordingly, he has
waived his right to challenge the district court’s denial of his motion to suppress,
and we do not consider it. As this is the only basis upon which he appeals, we
affirm his convictions.
AFFIRMED.
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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