                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4041


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

     v.

ROBERT LEON LECRAFT,

                Defendant – Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:10-cr-00021-FL-1)


Submitted:   October 9, 2013                 Decided:   October 24, 2013


Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Nardine Mary Guirguis, GUIRGUIS LAW, PA, Raleigh, North
Carolina, for Appellant.     Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, Yvonne V. Watford-McKinney, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Robert Leon LeCraft pled guilty to possession of a firearm

by a convicted felon. See 18 U.S.C. § 922(g). Pursuant to Rule

11(a)(2) of the Federal Rules of Criminal Procedure, LeCraft

expressly    conditioned      the     plea   on   his    right    to    appeal       the

district court’s order denying his pretrial suppression motion.

See J.A. 270. The court thereafter sentenced LeCraft to a 180-

month imprisonment term. In this appeal, LeCraft argues that the

court    erred    by   denying    his   suppression      motion    and    his    pre-

sentencing motion to substitute counsel. Further, he argues that

his ability to pursue the appeal is prejudicially affected by

the unavailability of his Rule 11 plea hearing transcript. 1 For

the reasons set forth below, we vacate the judgment and remand

for further proceedings.

     Rule    59(b)     of   the   Federal    Rules      of   Criminal    Procedure

authorizes       referral   of    a   pretrial    suppression      motion       to    a

magistrate judge for a recommendation, and it instructs that a

party who fails to object to such a recommendation waives the


     1
      Post-sentencing, the parties discovered that a transcript
of the guilty plea hearing is unavailable. In March 2013, we
issued an order remanding the case to the district court for the
limited purpose of settling and approving the record as provided
in Federal Rule of Appellate Procedure 10(c). See J.A. 252-53.
After conducting its review, the court adopted in its entirety
the government’s statement concerning the Rule 11 hearing and
adopted LeCraft’s statement in part. See J.A. 264-269.



                                         2
right to review. See, e.g., United States v. Midgette, 478 F.3d

616, 621-22 (4th Cir. 2007) (holding that the defendant waived

appellate    review    of      the   denial   of   his      suppression   motion    by

failing to file proper objections to the magistrate’s report). 2

As   we   explained       in     Midgette,     “[t]he       requirement    to    make

objections preserves the district court’s role as the primary

supervisor     of     magistrate        judges,       and     conserves    judicial

resources by training the attention of both the district court

and the court of appeals upon only those issues that remain in

dispute     after   the     magistrate        judge   has      made   findings     and

recommendations.” Id. at 621 (citation omitted).

     The district court referred LeCraft’s pretrial suppression

motion to a magistrate judge for an evidentiary hearing. The

magistrate judge conducted the hearing and filed a Memorandum

and Recommendation (“M&R”) in which he recommended denying the

motion. See J.A. 25-137 (hearing transcript), 138-152 (M&R). The

magistrate judge expressly noted in the M&R that either party

had 14 days to file written objections and warned them of the

consequences of failing to do so, see J.A. 151, and the district

clerk of court – citing Rule 59(b) - attached a similar notice

to the M&R, see J.A. 152. Both notices expressly informed the


     2
      The waiver doctrine also arises from our cases interpreting
28 U.S.C. § 636(b). See Midgette, 478 F.3d at 621.



                                          3
parties that a failure to object to the M&R could affect their

ability to appeal a judgment based on the magistrate’s findings

and    recommendation.      LeCraft,       who       was    represented          by   counsel,

failed to file written objections to the M&R within the allotted

time    period.    See    J.A.    153.     Finding         no    clear      error     with   the

recommendations of the magistrate judge, the court adopted the

M&R and denied the motion. See J.A. 153-166.

       LeCraft thereafter conditionally pled guilty, reserving the

right    to    appeal     the    order     denying         the        suppression      motion.

Unfortunately, LeCraft’s purported reservation of the right to

appeal the suppression order is illusory because by the time he

entered the conditional plea agreement he had already waived the

right to seek appellate review of that order by failing to file

objections to the M&R.

       We faced a circumstance identical to the one presented here

in United States v. Cagle, 314 Fed. Appx. 617 (4th Cir. 2009).

Like     LeCraft,       Cagle     failed        to     file        objections          to    the

magistrate’s       recommendation          that      his        suppression         motion    be

denied, but after the district court adopted the recommendation,

Cagle    entered    a     conditional       guilty         plea       and   challenged       the

suppression       order   on     appeal.    Applying            the    waiver    rule       noted

above,    we   held      that    Cagle     waived      his       right      to   appeal      the

suppression order, and we affirmed the conviction and sentence.

See also United States v. Buckbee, 3 Fed. Appx. 563 (7th Cir.

                                            4
2001) (same).       Although not binding, our unpublished disposition

in Cagle suggests that we should decline to consider LeCraft’s

challenge to the suppression order and proceed to consider the

other issues of the appeal.

       However, in United States v. Bundy, 392 F.3d 641, 649-50

(4th   Cir.    2004),      we    held    that    when   a     defendant      enters    a

conditional     plea      based    on    the    mistaken      belief    that   he     is

preserving an issue for review that, in fact, is not reviewable

by means of a conditional plea, no valid plea has been entered,

and the proper course is to vacate the judgment and remand the

case to the district court to allow the defendant to either

plead guilty again or proceed to trial. Bundy is not exactly on

point because although the defendant there attempted to preserve

an issue that was improper for conditional plea purposes, he

could nonetheless eventually appeal the issue if he chose on

remand to proceed to trial. Here, LeCraft has already waived the

right to appeal the denial of his pretrial suppression motion by

failing to file objections to the M&R, and he cannot resurrect

his right to seek appellate review of the pretrial suppression

order by proceeding to trial. See United States v. Flores-Duran,

2013   WL   3286248       (4th    Cir.   July    1,   2013)    (holding      that    the

defendant     who   was    convicted     after    trial     waived     the   right    to




                                           5
appeal the denial of his pretrial suppression motion by failing

to object to the magistrate’s recommendation). 3

     Notwithstanding     this   minor     difference,    we   have   carefully

considered this matter, and we find that the best course under

the circumstances presented is to follow Bundy and vacate the

judgment. LeCraft’s plea is specifically premised on his, the

government’s,    and     the    district      court’s      mistaken    belief

concerning his appellate rights, and it cannot be treated as a

knowing and voluntary unconditional plea. See Bundy, 392 F.3d at

649-50. We   believe     that   a   remand   for    further   proceedings   is

especially appropriate because of the unavailability of, and the

appellate dispute concerning, the Rule 11 transcript. On remand,

LeCraft should be permitted to enter another guilty plea (which

is   not   conditioned    on    his   right    to    appeal    the    pretrial

suppression order) or proceed to trial. 4



                                                        VACATED AND REMANDED




     3
      We note, however, that LeCraft may be able to renew the
suppression issue if he proceeds to trial. See United States v.
Raddatz, 447 U.S. 667, 678 n.6 (1980).
     4
      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.



                                      6
