UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4465
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAY MAURICE THARPS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:14-
cr-00161-PWG-1)
Submitted: May 27, 2016 Decided: July 1, 2016
Before AGEE and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Jennifer R. Sykes, Thomas M. Sullivan, Assistant
United States Attorneys, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jay Maurice Tharps appeals from his convictions, following
his guilty pleas, to possession of a firearm and ammunition by a
felon, possession with intent to distribute cocaine and
marijuana, and possession of a firearm in furtherance of a drug
trafficking crime. On appeal, he argues that the district court
erroneously denied his motions to suppress and for disclosure of
an informant’s statement. We vacate the district court’s
judgment and remand for further proceedings.
Generally, “when a defendant pleads guilty, he waives all
nonjurisdictional defects in the proceedings conducted prior to
entry of the plea, and thus has no nonjurisdictional 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) (alteration and internal quotation marks omitted).
However, a defendant may reserve his right to appeal pretrial
rulings by entering a conditional guilty plea. Such a
conditional guilty plea must be “[w]ith the consent of the court
and the government,” and a defendant must “reserv[e] 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). Although “the writing requirement [may be] satisfied
when the reservation is so clearly shown on the record that
there is no doubt that a conditional plea was agreed to[,] . . .
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the second and third requirements under the Rule — Government
consent and court approval — are mandatory and cannot be
avoided.” United States v. Fitzgerald, ___ F.3d ___, ___, No.
14-4795, 2016 WL 1660147, at *3 (4th Cir. Apr. 27, 2016)
(internal quotation marks omitted).
In Fitzgerald, we held that the defendant had not entered a
valid conditional guilty plea where the record failed to
demonstrate that the Government affirmatively agreed to the
conditional plea. Id. at *4-5. There, as here, the Government
stood silent while the district court informed the defendant
that he had reserved his right to appeal the court’s rulings on
the preplea motions. Id. at *1-2. Additionally, the
Government’s preplea letter provides that there were no
agreements or promises between the parties, and the Government
never affirmatively indicated at the plea colloquy that it
agreed that Tharps could appeal the district court’s preplea
rulings. We therefore conclude “that the mandatory government-
consent requirement was never satisfied,” id. at *5, and, thus,
that Tharps did not enter a valid conditional plea.
Because Tharps did not enter a valid conditional plea, “we
still must consider whether an unconditional plea has been
entered or whether no valid plea has been entered.” Id. at *6
(internal quotation marks omitted). “We may treat [an invalid
conditional] plea as unconditional only if [the defendant]
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entered such a plea, including a waiver of appeal rights,
knowingly, intelligently, and with sufficient awareness of the
relevant circumstances and likely consequences.” Id. (internal
quotation marks omitted).
We conclude Tharps did not enter a knowing and voluntary
unconditional plea. Tharps’ counsel initially indicated that
Tharps wished to plead guilty without an agreement because
Tharps sought to preserve his right to appeal. During the plea
hearing, counsel emphasized that an appellate waiver was
conspicuously absent from the district court’s colloquy. As in
Fitzgerald, “the district court apparently understood [Tharps’]
plea to be conditioned on his right to appeal the denial of his
suppression [and disclosure] motion[s], and that [Tharps]
entered his plea in reliance on the assurance that he had
preserved that issue.” Id.
Accordingly, we vacate the district court’s judgment and
remand 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
this court and argument would not aid the decisional process.
VACATED AND REMANDED
∗ We express no opinion on the merits of Tharps’ substantive
arguments.
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