[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 24, 2009
No. 09-10932 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00069-CR-ODE-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE PEREZ OCHOA,
a.k.a. Lucio Perez Ochoa,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 24, 2009)
Before EDMONDSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Enrique Perez Ochoa, through counsel, appeals the denial of his motion to
suppress. For the reasons set forth below, we vacate Ochoa’s convictions and
remand to the district court to allow Ochoa to plead anew.
I.
A grand jury charged Ochoa with possession of cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), (“Count 1”);
possession of firearms during the commission of a drug-trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A)(i), (“Count 2”); and possession of firearms
by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2),
(“Count 3”). Ochoa pled not guilty and filed a motion to suppress. In his motion
to suppress, Ochoa argued that (1) the officers who arrested him did not have an
arrest warrant or probable cause for his arrest; (2) officers searched his home
without a warrant, even though he immediately objected to the search; (3) Ochoa’s
wife never voluntarily consented to a search of Ochoa’s home; and (4) the
subsequently obtained search warrant for Ochoa’s home was invalid because
evidence from the initial unlawful search was listed in the search warrant affidavit
to establish probable cause. Ochoa asked the court to suppress (1) evidence
gathered pursuant to the warrantless search of his person and residence; (2) any of
his statements obtained in violation of the Constitution; (3) the seizure of his
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person; and (4) any statements or evidence obtained as a result of the warrant
search of his residence. The government subsequently filed a superseding
indictment, which contained the same three charges set forth in the original
indictment. Ochoa pled not guilty to the charges contained in the superseding
indictment.
The district court held a hearing on Ochoa’s motion to suppress. After the
suppression hearing, a magistrate judge recommended denying Ochoa’s motion to
suppress. Ochoa filed objections to the magistrate’s report and recommendation,
but subsequently pled guilty to all counts.
On October 21, 2008, the district court held a change-of-plea hearing. At
the hearing, Ochoa indicated that he wished to enter a guilty plea on Counts 1
through 3 without the benefit of a plea agreement. Ochoa and his counsel then
signed a written guilty plea, which stated “I, Enrique Perez Ochoa, aka Lucio Perez
Ochoa, defendant, having received a copy of the [written] Indictment, and having
been arraigned plead Guilty thereto to counts One through Three thereof.” The
government set out the evidence that it would present if the case proceeded to trial.
Ochoa disputed the government’s account of his arrest and the search of his house,
asserting that officers confronted him without identifying themselves and beat him
in his ribs, and contending that he did not resist arrest. The government noted, “I
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realize there is disagreement about the arrest and some other things, but I think as
far as the elements of the offense, of all three offenses go, I think he hasn’t denied
anything that would subtract from any offenses—elements.” Defense counsel
explained,
We went over the elements of the crimes, and [Ochoa]
fully understands them and is admitting to the facts in the
indictment. The one thing that has caused him to enter a
plea to these at this time without a plea agreement is that
he is in fact guilty of these, but we disagree with the
ruling on the motion to suppress. Therefore, we have
some differences with the government about how this
arrest took place and at what time consent was given. So
he does intend to appeal the denial of the motion to
suppress. But as far as the facts of the case, he is guilty
of possessing the weapon when he was arrested, of
having and knowing that there was a weapon in his
house, and of knowing that the drugs were in his house
and that he possessed them and did intend to transfer
those drugs to a third party.
Ochoa indicated that his counsel’s statement was correct. The district court
accepted Ochoa’s guilty plea to Counts 1 through 3 after finding that Ochoa
entered the plea freely and voluntarily and that there was a factual basis to support
the plea. The district court sentenced Ochoa to 46 months’ imprisonment on each
of Counts 1 and 3, to run concurrently, and 60 months’ imprisonment on Count 2,
to run consecutive to the other sentences, for a total of 106 months’ imprisonment.
II.
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We review de novo questions of law. United States v. Patti, 337 F.3d 1317,
1320 n.4 (11th Cir. 2003).
A defendant’s knowing and voluntary unconditional guilty plea waives all
non-jurisdictional defects in a proceeding. United States v. Yunis, 723 F.2d 795,
796 (11th Cir. 1984); United States v. Pierre, 120 F.3d 1153, 1155 (11th Cir.
1997). For a guilty plea to be entered knowingly and voluntarily, it must satisfy
three “core concerns,” which are that “(1) the guilty plea must be free from
coercion; (2) the defendant must understand the nature of the charges; and (3) the
defendant must know and understand the consequences of his guilty plea. If one of
the core concerns is not satisfied, then the plea of guilty is invalid.” United States
v. Siegel, 102 F.3d 477, 481 (11th Cir. 1996) (citations omitted).
Rule 11(a)(2) provides:
Conditional Plea. With the consent of the court and the
government, a defendant may enter a conditional plea of
guilty or nolo contendere, reserving in writing the right to
have an appellate court review an adverse determination
of a specified pretrial motion. A defendant who prevails
on appeal may then withdraw the plea.
Fed.R.Crim.P. 11(a)(2). Rule 11(h) provides that “[a] variance from the
requirements of this rule is harmless error if it does not affect substantial rights.”
Fed.R.Crim.P. 11(h). We have held that conditional pleas must comply with
Rule 11(a)(2), in that pretrial issues must be preserved in writing and the
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government must consent expressly to the entry of a conditional plea. See Pierre,
120 F.3d at 1155 (noting that a “conditional plea must be in writing and must be
consented to by the court and by the government”); United States v. Betancourth,
554 F.3d 1329, 1332 (11th Cir. 2009) (holding that a defendant’s guilty plea was
unconditional, where the “guilty plea was not in writing, and the Government did
not consent to it being conditional”).
In Pierre, we specifically noted, “[a]ssuming without deciding that the
absence of writing is not dispositive of whether a plea is conditional, we
nonetheless think that—at the very least—the writing requirement is strong
evidence that the government’s consent must be express under Rule 11(a)(2).”
Pierre, 120 F.3d at 1155 (footnote omitted). We explained that, “[f]or conditional
pleas, [government] consent is not a neutral attitude” and that “consent in the Rule
means express approval: direct assent requiring no inference or implication. Put
differently, . . . for Rule 11 purposes, silence or inaction by the government is not
consent.” Id. at 1156. Thus, in Pierre, we held that the government did not
consent to the entry of a conditional plea where the government remained silent
when defense counsel stated that his client’s speedy-trial issue raised in a motion to
dismiss was preserved for appeal. Id. at 1155-56. We vacated Pierre’s conviction,
holding that Pierre’s guilty plea did not satisfy the Rule 11 core concern that he
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understand the consequences of his plea. Id. at 1157.
III.
It is clear from the record, and the government concedes, that Ochoa’s
intention to preserve his suppression issues for appeal was never reduced to
writing. Thus, it appears that Ochoa’s plea fails to qualify as a conditional plea
under Rule 11(a)(2). See Fed.R.Crim.P. 11(a)(2). Even if written consent is not
required by Rule 11(a)(2), see Pierre, 120 F.3d at 1155, there is no indication in the
record that the government agreed to the entry of a conditional plea. See
Fed.R.Crim.P. 11(a)(2). During the plea hearing, the government never explicitly
stated that the parties had agreed to the entry of a conditional plea. In fact, when
the parties were discussing Ochoa’s objections to the government’s account of his
arrest and the search of his apartment, the government noted that “there is
disagreement about the arrest and some other things,” but it never specifically
stated that it had agreed to the entry of a conditional plea so that these issues would
be preserved for appeal. Defense counsel later stated that Ochoa “intend[ed] to
appeal the denial of the motion to suppress,” but the government did not
acknowledge that the plea was conditional or expressly consent to it being
conditional. See Pierre, 120 F.3d at 1156 (“for Rule 11 purposes, silence or
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inaction by the government is not consent”). Because we have previously held that
the government’s consent to the entry of a conditional plea must be express, and
because there is no evidence on the record of any express consent by the
government, Ochoa’s guilty plea did not meet the requirements of Rule 11(a)(2),
and, therefore, was not conditional. See Fed.R.Crim.P. 11(a)(2); Pierre, 120 F.3d
at 1155-56.
The government, on appeal, asserts that Ochoa’s guilty plea should be
construed as a conditional plea, because, during plea negotiations, it consented to
the entry of a conditional plea. However, Rule 11(a)(2) and our precedent indicate
that the government’s consent must be evidenced in writing or by statements made
on the record. See Fed.R.Crim.P. 11(a)(2); Pierre, 120 F.3d at 1155-56.
Furthermore, the language of Rule 11(a)(2) focuses on district court proceedings,
stating that both the court and the government must consent to the entry of a
conditional plea before such a plea can be entered. See Fed.R.Crim.P. 11(a)(2).
Because these requirements were not met here, a conditional plea was not validly
entered.
The government also argues that Rule 11(h) should apply, and that the
failure to meet the technical requirements of Rule 11(a)(2) should be determined to
be harmless error. We have not applied Rule 11(h)’s harmless-error standard to a
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plea that failed to comply with Rule 11(a)(2)’s requirements, and in Pierre we
indicated a reluctance to apply Rule 11(h) to excuse non-compliance with
Rule 11(a)(2)’s writing requirement, providing:
Although this failure [to comply with Rule 11(a)(2)’s
writing requirement] has been more readily excused as a
formality that can be forgiven under the harmless error
provision of the rule . . . the Advisory Committee Notes
to the rule indicate that the writing requirement is
intended to be enforced:
The requirement that the conditional plea be made by the
defendant “reserving in writing the right to appeal from
the adverse determination of any specified pretrial
motion,” . . . will ensure careful attention to any
conditional plea. . . . By requiring this added step, it will
be possible to avoid entry of a conditional plea without
the considered acquiescence of the government . . . .
Pierre, 120 F.3d at 1155 n.2 (citing Fed.R.Crim.P. 11(a)(2)). We also have noted
that “Rule 11(h) should not be read as nullifying the Rule’s safeguards or as
inviting courts to take a more casual approach to proceedings under the Rule.”
United States v. Zickert, 955 F.2d 665, 668 (11th Cir. 1992). Here, Ochoa’s guilty
plea wholly failed to comply with the requirements of Rule 11(a)(2). The
government’s consent to a conditional guilty plea was not reduced to writing and
was not otherwise obvious from the district court record. Accordingly, we
construe his plea as an unconditional guilty plea.
Although Ochoa’s guilty plea was unconditional, the record shows that
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Ochoa entered his guilty plea under the mistaken assumption that he would be
permitted to appeal the denial of his motion to suppress. As the government
concedes, Ochoa did not understand the consequences of entering an unconditional
guilty plea, such that the core concerns of Rule 11 were not satisfied. See Siegel,
102 F.3d at 481; Pierre, 120 F.3d at 1157. Therefore, his plea was not entered
knowingly and voluntarily and was invalid. See Siegel, 102 F.3d at 481; Pierre,
120 F.3d at 1157. Accordingly, based on our review of the record and
consideration of the parties’ briefs, we vacate Ochoa’s conviction and remand to
the district court to allow him to plea anew.
VACATED and REMANDED.
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