                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4702


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

BRIAN PORTIS,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00034-RLW-1)


Submitted:    May 4, 2009                   Decided:   June 17, 2009


Before SHEDD, Circuit Judge, C. Arlen BEAM, Senior Circuit Judge
of the United States Court of Appeals for the Eighth Circuit,
sitting by designation, and Joseph F. ANDERSON, Jr., United
States District Judge for the District of South Carolina,
sitting by designation.


Vacated and remanded by unpublished per curiam opinion.


Jennifer M. Newman, Richmond, Virginia; C. David             Whaley,
Richmond, Virginia, for Appellant.       Chuck Rosenberg,     United
States Attorney,    Alexandria,   Virginia,   Richard D.      Cooke,
Assistant United States Attorney, OFFICE OF THE UNITED        STATES
ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Brian Portis was indicted on one count of possession of a

firearm     by       an     unlawful        user     in    violation       of   18    U.S.C.

§ 922(g)(3)          and       one    count    of    possession       of    marijuana       in

violation of 21 U.S.C. § 844.                  These charges arose from evidence

obtained during a police search of Portis’ home on June 13,

2007.     Portis moved to suppress the evidence obtained during the

search    of     his       home      as   unlawful   under     the    Fourth     Amendment.

After an evidentiary hearing on Portis’ Fourth Amendment claim,

the district court denied the motion to suppress.                               Portis then

entered a purported conditional plea, reserving the right to

appeal the denial of his suppression motion.

      Generally,           a      defendant    who        pleads   guilty       waives      all

nonjurisdictional defects in the proceedings conducted prior to

entry of the plea.                   United States v. Bundy, 392 F.3d 641, 644

(4th Cir. 2004).               However, in limited circumstances, a defendant

may   enter      a     conditional         guilty    plea     under    Federal       Rule   of

Criminal Procedure 11(a)(2) and preserve certain pretrial issues

for appeal.          Interpreting Rule 11(a)(2), we held in Bundy that,

among other requirements, a conditional plea must 1) be offered

in writing, 2) have the affirmative consent of the Government,

and 3) have the approval of the district court. Bundy, 392 F.3d

at 645.



                                                2
     After     the     parties     filed      their      appellate       briefs,       we

requested     supplemental       briefs    on    the     issue    of     whether     the

purported conditional plea in this case is proper in light of

Bundy and United States v. Phillips, 296 Fed. Appx. 349 (4th

Cir. 2008).     In its supplemental brief, the Government concedes

that the requirements for a conditional guilty plea were not

fully     satisfied     but   contends        that      any    defect        in   Portis’

conditional guilty plea should not bar review of the merits of

his appeal.      In his supplemental brief, Portis largely adopts

the arguments of the Government.

     Both parties concede that the writing requirement was not

satisfied.       Next,    the     parties       argue    that     the    Government’s

approval of the plea is clear from its failure to object to the

conditional guilty plea.           However, we stated in Bundy that the

Government must affirmatively agree to the plea.                        See 392 F.3d

at 645.     Finally, the parties note that the court was willing to

approve of the conditional guilty plea, and therefore, the third

requirement    is     satisfied.     However,        the      record    is    less   than

clear on this point. *        Because the record is not clear on whether


     *
        At first, the court appeared willing to accept the
conditional guilty plea. See J.A. 125. The court then appeared
to conduct a Rule 11 colloquy. See J.A. 128-130. However, the
court immediately thereafter declared that it was conducting a
bench trial based on the evidence presented at the evidentiary
hearing and declared that Portis was guilty of the charged
offense beyond a reasonable doubt. See J.A. 131.       Portis’
(Continued)
                                          3
the district court approved of the conditional guilty plea, we

cannot agree that the third requirement – court approval – has

been satisfied.

      For these reasons, we hold that this appeal is not properly

before us.       Because Portis only entered into the plea agreement

and pled guilty based on the express understanding that he would

be   able   to   pursue   this   appeal,   the   appropriate   course    under

Bundy is for us to vacate the judgment of conviction and remand

this case to the district court for further proceedings. See Id.

at 649-50.

      Accordingly,     we   vacate   the    judgment   of   conviction    and

remand this case to the district court 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 the court and argument would not aid the

decisional process.

                                                       VACATED AND REMANDED




counsel also agreed to the court finding Portis guilty beyond a
reasonable doubt on the evidence that had been submitted. Id.
Further confusing this matter, the judgment reflects that Portis
pled guilty rather than having been found guilty. See J.A. 135.
Both parties now argue on appeal that Portis entered a
conditional guilty plea.



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