In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1091
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
F ONTEZ L. C OMBS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:09-cr-30178-MJR-1—Michael J. Reagan, Judge.
A RGUED JULY 12, 2011—D ECIDED S EPTEMBER 12, 2011
Before B AUER, C UDAHY and T INDER, Circuit Judges.
P ER C URIAM. Fontez L. Combs pleaded guilty to one
count of possession of a firearm by a felon. 18 U.S.C.
§ 922(g)(1). He was sentenced at the top of his Guidelines
range to 33 months’ imprisonment. On appeal, Combs
argues that the district court committed clear error by
refusing to address the merits of an untimely motion
to suppress the gun underlying his conviction. But
Combs waived this contention by pleading guilty uncon-
2 No. 11-1091
ditionally, and, because he did not preserve any issues
for review, we must dismiss for lack of jurisdiction.
I. BACKGROUND
By September 2008, a Drug Enforcement Administra-
tive (DEA) task force in southern Illinois was actively
investigating Combs, who was suspected of buying
large amounts of heroin, cocaine, and marijuana in
Chicago and peddling the drugs in downstate Madison
and East St. Louis. In January 2009, a drug dealer who
was arrested a month earlier told investigators that
during the second half of 2008 he bought from Combs
about 2,000 grams of heroin and 500 grams of crack. This
dealer recounted that typically he picked up drugs at the
house in Madison where Combs was living, or else in
East St. Louis at the homes of Combs’s mother and sister.
On April 3, 2009, investigators assigned to the task force
directed an informant to call Combs and arrange to buy
cocaine. Combs agreed to meet, but an hour later sur-
veillance agents watching his Madison residence saw
him leave by car with another man and travel into Mis-
souri. When the informant called again to inquire about
the delay, Combs said he was in Missouri trying to
“make a move.” In fact, soon after that telephone con-
versation, investigators watched Combs and his com-
panion stop in the parking lot of a St. Louis casino
and accept a black bag from a man waiting there. Combs
was then followed back to his house in Madison, which
he entered with his passenger and the black bag. The
meeting in St. Louis and Combs’s arrival at his house in
No. 11-1091 3
Madison was recorded on video. About an hour after
arriving home, Combs met the informant outside his
mother’s house in East St. Louis. A surveillance camera
at the residence captured this meeting. Combs said he
had just gotten 2 kilograms of cocaine in St. Louis and
also had heroin available for sale. The informant did not
make a purchase.
Based on this information, on April 7 the task force
obtained and executed a federal search warrant for the
Madison residence, where they found 650 grams of mari-
juana, a handgun, and ammunition. Combs was in-
dicted in November 2009 and arrested in December. At
his initial appearance on December 16, a magistrate
judge appointed the federal public defender to represent
Combs and ordered that all pretrial motions be filed no
later than January 7, 2010. But in early February the
public defender withdrew after Combs hired private
counsel (who continue to represent him in this appeal).
The new lawyers asked for a continuance so they could
obtain and review the application for the search war-
rant, which remained under seal. The district court
granted that unopposed motion and postponed the trial
until May 10. On February 18 the court unsealed the
warrant application.
A week before trial, however, lead counsel requested
another continuance and recounted his difficulties in
watching the video footage recorded on April 3, 2009.
According to counsel, the prosecutor had twice given
him a DVD containing the videos, but neither disc
worked and so Combs did not succeed in watching the
4 No. 11-1091
footage until April 23. After watching the videos, counsel
continued, Combs had instructed him to file a motion to
suppress based on perceived discrepancies between
the content of the videos and the search-warrant affida-
vit. On May 4 the district court granted a continu-
ance until September 20 but raised two concerns in its
order. First, the court noted that “the deadline for sup-
pression motions elapsed months ago, and to date no
extension of that deadline has been secured.” The court
did not say whether it would be inclined to grant an
extension if asked. Second, the district court reminded
Combs that, if a motion to suppress was permitted, “time
would have to be set aside” on the court’s docket for
briefing and a hearing.
After that, lead counsel waited 2-½ months to file
his motion to suppress, and he never did seek leave to
file it out of time. In that motion Combs argued that the
application for the warrant didn’t establish probable
cause to believe that contraband would be found at
his Madison residence. According to Combs, the video
surveillance did not corroborate the affiant’s assertion
that Combs had received a black bag in St. Louis; on
that question, said Combs, the video footage was incon-
clusive. Moreover, Combs continued, the affiant had
omitted that the task force used a helicopter to conduct
surveillance and thus, according to Combs, misled the
magistrate judge into believing that he was being
watched at all times “from a vantage point on the ground.”
The district court denied Combs’s motion, noting that
the deadline for pretrial motions had passed in Janu-
No. 11-1091 5
ary 2010 and that counsel had never requested an exten-
sion or sought permission to file an untimely motion.
The court pointed out that, when Combs was given a
second continuance, defense counsel had been re-
minded that the motions deadline had passed but he
still hadn’t sought an extension to file a suppression
motion. The court emphasized that it gave defense
counsel “ample opportunity, subtle hints, and finally a
blunt invitation . . . to seek an extension of the motion
deadline,” and yet counsel had done nothing. The court
reasoned that it had done everything possible “to illumi-
nate the path to properly filing a suppression motion”
but could not “practice law for counsel” and, thus, given
the passage of time and looming trial date, would
not extend the motions deadline or the trial date.
That adverse ruling prompted defense counsel to
finally seek leave to file the motion to suppress. He ac-
knowledged that he did not have an excuse or a rea-
sonable explanation for failing to request an extension
earlier but argued that Combs should not suffer because
of his mistake. Counsel pointed to several personal
and professional circumstances that contributed to the
delay in filing the suppression motion but conceded
that these did not excuse his failure to meet the court’s
deadlines. The motion concludes with counsel’s ad-
mission that he “quite clearly understands that the fault
in this case is his” and that, although he had an obliga-
tion to carefully review the court’s orders, he did not do
so. The district court denied Combs’s motion, concluding
that there wasn’t good cause for the late filing. The court
also explained that there was “no way to allow a sup-
6 No. 11-1091
pression motion to be filed, briefed, heard, and ruled on
without continuing the trial,” which the judge already
had said he wouldn’t do. Combs filed a motion to recon-
sider the denial, which the court also denied, noting
that extensions and continuances had been a “chronic
problem” with counsel’s firm.
Combs then entered an unconditional guilty plea. He
did not reserve the right to challenge on appeal the
denial of his motion to suppress.
II. DISCUSSION
On appeal, Combs challenges the district court’s
refusal to let him file an untimely motion to suppress
and—for the first time—argues that the government
shared the blame for his delay in filing. Moreover, he
insists, the government would not have been prejudiced
if the court had heard the merits of his motion.
If a defendant wishes to pursue a motion to suppress,
he must do so before trial and according to the dead-
lines set by the district court. F ED. R. C RIM. P. 12(b)(3)(C);
United States v. Mancillas, 183 F.3d 682, 703 (7th Cir. 1999).
A defendant “waives any Rule 12(b)(3) defense, objec-
tion, or request not raised by the deadline the court sets”
unless the court grants relief from the waiver for good
cause. F ED. R. C RIM. P. 12(e); see United States v. Figueroa,
622 F.3d 739, 742 (7th Cir. 2010); United States v. Acox, 595
F.3d 729, 731-32 (7th Cir. 2010); United States v. Johnson,
415 F.3d 728, 730-31 (7th Cir. 2005). Ordinarily we review
for clear error a district court’s discretionary decision
No. 11-1091 7
whether to consider an untimely motion to suppress.
United States v. Winbush, 580 F.3d 503, 507-08 (7th Cir.
2009); United States v. Angle, 234 F.3d 326, 334 (7th Cir.
2000).
But in this case we must first address a problem with
Combs’s appeal that both parties have ignored in their
briefs. When a defendant enters an unconditional
guilty plea, he waives all nonjurisdictional defects
arising before his plea, including Fourth Amendment
claims. See United States v. Phillips, No. 10-2438, 2011 WL
2417092, at *2 (7th Cir. June 17, 2011); United States v. Coil,
442 F.3d 912, 914 (5th Cir. 2006); United States v. Galbraith,
200 F.3d 1006, 1010 (7th Cir. 2000). That is the rule first
announced almost forty years ago in Tollett v. Henderson,
411 U.S. 258 (1973). There, the Supreme Court explained
that a “guilty plea represents a break in the chain of
events” in the criminal process because the “defendant
has solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, and he
may not thereafter raise independent claims relating to
the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea.” Id. at 267. A guilty
plea thus “forecloses independent inquiry” into these pre-
plea claims. Id. at 266. Yet the operation of this rule
would force defendants who lost their pretrial motions
to “go through an entire trial simply to preserve the
pretrial issues for later appellate review,” F ED. R. C RIM.
P. 11, Notes of Advisory Committee on Rules, 1983 Amend-
ment, and thus Rule 11(a)(2) creates an exception
allowing defendants to preserve specific pre-plea issues
for appellate review if certain requirements are met.
8 No. 11-1091
Rule 11(a)(2) provides in part that “[w]ith the consent of
the court and the government, a defendant may enter a
conditional plea of guilty . . . reserving in writing the
right to have an appellate court review an adverse deter-
mination of a specified pretrial motion.” Although we
have held that the writing requirement is not jurisdic-
tional, we have not said the same about the absence of
express agreement by the government and the district
court. See United States v. Rogers, 387 F.3d 925, 933 (7th Cir.
2004). The Advisory Committee’s notes make clear that
a conditional guilty plea under Rule 11(a)(2) requires
“unequivocal government acquiescence” and the explicit
consent of the district court. F ED. R. C RIM. P. 11, Notes of
Advisory Committee on Rules, 1983 Amendment; see United
States v. Yasak, 884 F.2d 996, 999 (7th Cir. 1989). The
district court’s approval ensures that the defendant “is
not allowed to take an appeal on a matter which can only
be fully developed by proceeding to trial.” FED. R. C RIM.
P. 11, Notes of Advisory Committee on Rules, 1983 Amend-
ment; see United States v. Bundy, 392 F.3d 641, 647 (4th Cir.
2004). In fact, the district courts must decline to
accept conditional pleas unless the appellate court’s
decision will effectively dispose of the case. F ED. R. C RIM.
P. 11, Notes of Advisory Committee on Rules, 1983 Amendment;
United States v. Markling, 7 F.3d 1309, 1313 (7th Cir. 1993).
We have previously held that when a defendant fails
to comply with these requirements and does not ensure
the preservation of his issues for appellate review, we
lack jurisdiction to hear those claims. United States v.
Kingcade, 562 F.3d 794, 798 (7th Cir. 2009) (concluding
that because defendant did not condition plea agree-
No. 11-1091 9
ment on right to appeal pre-plea motions we lacked
jurisdiction to review claims); United States v. Elizalde-
Adame, 262 F.3d 637, 640 (7th Cir. 2001) (concluding that
defendant’s plea was “unequivocally unconditional” and
thus we lacked “jurisdiction to hear the appeal); United
States v. Cain, 155 F.3d 840, 843 (7th Cir. 1998) (noting that,
because defendant did not preserve his right to appeal
suppression issue, this court did “not have jurisdiction
over [that] aspect of his appeal”); but see United States
v. Robinson, 20 F.3d 270, 273 (7th Cir. 1994) (noting
that “[e]ven when a defendant pleads guilty uncondi-
tionally . . . the court may review nonjurisdictional errors
for plain error”). Typically, the jurisdictional bar is
asserted by the government in response to a defendant’s
attempt to raise pre-plea issues after entering an uncon-
ditional plea. Here, however, the government over-
looked the absence of a conditional guilty plea and re-
sponded to Combs’s brief as if there is no question
about our jurisdiction to evaluate his contentions. We
raised the jurisdictional question on our own during oral
argument, and the government cited Eberhart v. United
States, 546 U.S. 12 (2005), in suggesting that, by neglecting
to appreciate the significance of the fact that Combs
had not entered a conditional guilty plea, it may have
“waived the waiver.” Eberhart is a part of a recent line
of cases in which the Supreme Court has distinguished
between jurisdictional rules and court-created “claim-
processing” rules. See, e.g., Dolan v. United States, 130 S. Ct.
2533 (2010) (holding that 90-day deadline for sentencing
court to set restitution is not jurisdictional); Bowles v.
Russell, 551 U.S. 205 (2007) (holding that time limit in
10 No. 11-1091
Federal Rule of Appellate Procedure 4(a) for filing
appeals in civil case is jurisdictional); Kontrick v. Ryan, 540
U.S. 443 (2004) (distinguishing rules governing subject-
matter jurisdiction from those that are merely claim-
processing rules and holding that certain filing dead-
lines in Bankruptcy Rules are not jurisdictional). In
Eberhart itself the Court held that the 7-day filing
deadline applicable to motions for a new trial under
Federal Rule of Criminal Procedure 33(a) is a nonjuris-
dictional claim-processing rule and that the govern-
ment, by failing to raise the issue of untimeliness, forfeits
the defense. Id. at 19.
In Combs’s case, the government apparently assumes
that the requirements of Rule 11(a)(2) are like those in
Rule 33(a). If we agree with this position, then the gov-
ernment has waived its defense that Combs gave up
his suppression claim by entering an unconditional
guilty plea. Only the Ninth Circuit has explicitly
addressed the application of Eberhart to Rule 11(a)(2), and
in that en banc decision the court adopted the view sug-
gested here by the government. See United States v. Jacobo-
Castillo, 496 F.3d 947, 954 (9th Cir. 2007) (en banc). The
defendant in Jacobo-Castillo had appealed his conviction
after entering an unconditional guilty plea and sought
to raise issues concerning preindictment delay and an
unsuccessful motion to suppress. Id. at 950. The govern-
ment did not assert the absence of a conditional plea as
a ground to bar the appeal. Id. at 951. The majority in
Jacobo-Castillo reasoned that the defendant’s uncondi-
tional plea was not a bar to appellate review because,
according to the court, none of the rules of criminal
No. 11-1091 11
procedure, including Rule 11, is jurisdictional unless it
has a statutory basis. See id. at 953-55. The court acknowl-
edged the holding in Tollett that pre-plea nonjurisdic-
tional issues are waived once a defendant enters an
unconditional plea, but concluded that Tollett concerns
the “preclusive effect to be given the plea agreement” and
not the question of jurisdiction. Id. at 955-56. And because
the government had failed to argue waiver, the en banc
court concluded that appellate jurisdiction was secure
and remanded the case to the panel for consideration
on the merits. Id. at 957.
In Jacobo-Castillo the Ninth Circuit asserted that its
understanding of Rule 11(a)(2) is bolstered by decisions
from four other circuits dealing with a very different
issue: whether an explicit waiver of appellate rights in a
plea agreement affects the court’s jurisdiction. See United
States v. Gwinnett, 483 F.3d 200, 201 (3d Cir. 2007); United
States v. Caruthers, 458 F.3d 459, 471-72 (6th Cir. 2006);
United States v. Story, 439 F.3d 226, 230-31 (5th Cir.
2006); United States v. Hahn, 359 F.3d 1315, 1328 (10th
Cir. 2004). The answer is no, according to these decisions,
and that is our position as well. See Latham v. United States,
527 F.3d 651, 653 (7th Cir. 2009); United States v. Mason,
343 F.3d 893 (7th Cir. 2003). But an unconditional guilty
plea is very different from a defendant’s bargained-for
promise not to appeal, and indeed our own research has
shown that one of the four circuits singled out in Jacobo-
Castillo actually agrees with our view that the failure
to preserve a pretrial issue by means of a conditional
guilty plea deprives the appellate court of jurisdiction
to review that issue. See United States v. Mendez-Santana,
12 No. 11-1091
645 F.3d 822 (6th Cir. 2011). Two other circuits appear to
be split. Compare Bundy, 392 F.3d at 645, with United
States v. Garcia, 339 F.3d 116, 118 (2d Cir. 2003). We
note, too, that we are inclined to agree with the dissent’s
reasoning in Jacobo-Castillo that the question of jurisdic-
tion is unrelated to Rule 11(a)(2) and grounded instead
in Article III. As explained by Judge Callahan, a defen-
dant’s entry of an unconditional guilty plea “removes
the issue of guilt from his case, rendering moot any pre-
plea challenges that do not implicate the validity of the
admission itself.” Jacobo-Castillo, 496 F.3d at 957 (Callahan,
J., dissenting). Under this view, an appellate court lacks
jurisdiction over pre-plea claims “because of the absence
of a case or controversy.” Id.
To that we would add that Rule 11(a)(2) is unlike the
timing rules addressed in Eberhart and its progeny
because it requires the express consent of the govern-
ment and the district court. If we accept the govern-
ment’s position that its oversight or acquiescence can
permit a defendant to challenge an adverse ruling on a
pretrial motion, then we must also countenance that
the government can usurp the district court’s in-
dependent right to accept or reject a conditional plea. In
effect the government would read out of Rule 11(a)(2)
its requirement that a plea agreement allowing for a
conditional plea have the district court’s blessing.
We are unwilling to overrule our own decisions and
embrace the Ninth Circuit’s view simply on the strength
of an offhand, unbriefed reference to Eberhart made at
oral argument. We cannot know whether the govern-
No. 11-1091 13
ment even is aware of our contrary decisions. In the end,
though, it wouldn’t matter to us whether our jurisdic-
tion remains intact despite the unconditional nature of
Combs’s guilty plea. The government can forego a
defense—whether by design or neglect—but we are not
obligated to accept the government’s waiver. See
Rogers, 387 F.3d at 934; United States v. Schmidt, 47 F.3d
188, 190 (7th Cir. 1995). Neither party has offered a
reason why we should overlook Combs’s unconditional
plea even if we can, nor do we see a reason to do so.
III. CONCLUSION
For the foregoing reasons, the appeal is D ISMISSED.
C UDAHY, Circuit Judge, concurring in the judgment.
Whatever may be the merits of the jurisdictional issue as
a matter of first impression, this question appears to
be controlled by relevant Seventh Circuit precedent. See
United States v. Kingcade, 562 F.3d 794, 798 (7th Cir. 2009);
United States v. Elizalde-Adame, 262 F.3d 637, 640 (7th Cir.
2001); United States v. Cain, 155 F.3d 840, 843 (7th Cir. 1998).
9-12-11