In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1058

United States of America,

Plaintiff-Appellee,

v.

Libia Elizalde-Adame,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 227--David H. Coar, Judge.

Argued June 8, 2001--Decided August 13, 2001


  Before Bauer, Easterbrook, and Kanne,
Circuit Judges.

  Bauer, Circuit Judge.

BACKGROUND

  On March 31, 1999, federal agents with
the Immigration and Naturalization
Service ("INS") arrested Libia Elizalde-
Adame at an apartment in Chicago where
she made counterfeit immigration
documents. Acting on a tip from a
reliable informant, the agents went to
the apartment building and knocked on
Elizalde-Adame’s door. Elizalde-Adame
asked, in Spanish, who was there. One of
the agents responded in Spanish that she
was her new neighbor. Elizalde-Adame then
opened the door part way, at which time
the agents saw equipment and other items
associated with the manufacture of
counterfeit immigration documents inside
the apartment. The agents then displayed
their badges and told Elizalde-Adame that
she was under arrest. While Elizalde-
Adame was still standing inside her
apartment, one of the agents told her to
put her hands on the wall and to separate
her feet, and she complied. The agents
then entered Elizalde-Adame’s apartment
without her consent and searched her. The
parties dispute whether the agents gave
Elizalde-Adame Miranda warnings before or
after entering the apartment.
Nevertheless, Elizalde-Adame eventually
signed a Miranda waiver form, after which
she admitted that she was in the country
illegally and that she had been producing
the documents for a young male throughout
the month preceding the arrest. She then
gave the agents consent to search the
apartment, whereupon they discovered
incriminating equipment and documents.

  After waiving her right to be charged by
indictment, Elizalde-Adame was charged by
information with production of false
identification documents in violation of
18 U.S.C. sec. 1028. She was granted
leave by the court to file a motion to
quash the arrest and to suppress the
evidence obtained following the arrest.
After conducting an evidentiary hearing
(during which Elizalde-Adame and the
arresting agents testified regarding the
circumstances of the arrest), and after
receiving briefs on the issue of
warrantless entry into a home to complete
an arrest, the district court denied Eli
zalde-Adame’s motion to suppress.

  Subsequently, Elizalde-Adame signed a
plea agreement and entered a plea of
guilty before the district court. Neither
in the plea agreement nor during the plea
colloquy did Elizalde-Adame condition her
plea on the right to appeal the denial of
her suppression motion. At the sentencing
hearing, the district court adjusted
Elizalde-Adame’s criminal history
category from I to III on the basis of a
prior misdemeanor supervision and
determined that she did not merit a
sentence reduction for acceptance of
responsibility. After denying Elizalde-
Adame’s motion for a downward departure
based upon extraordinary familial
responsibility, the district court
sentenced her to 41 months in prison.
Elizalde-Adame appeals the district
court’s denial of her motion to suppress.

DISCUSSION
  Before we address the merits of
Elizalde-Adame’s appeal, we must
determine whether it is properly before
us. Elizalde-Adame pled guilty
unconditionally, and the district court
accepted her plea. As the government
notes, an unconditional guilty plea
waives all non-jurisdictional defects
occurring prior to the plea, including
Fourth Amendment claims like the one
raised here. See United States v.
Galbraith, 200 F.3d 1006, 1010 (7th Cir.
2000); United States v. Cain, 155 F.3d
840, 842 (7th Cir. 1998). Fed. R. Crim.
P. 11(a)(2) provides that a defendant may
enter a conditional plea of guilty "with
the approval of the court and the consent
of the government, . . . reserving in
writing the right, on appeal from the
judgment, to review of the adverse
determination of any specified pretrial
motion." However, in order to preserve an
issue for appeal by means of a
conditional plea, "the plea must
precisely identify the pretrial issues
which the defendant wishes to preserve
for review," Cain, 155 F.3d at 842, and
the defendant must obtain both the
approval of the district court and the
"unequivocal acquiescence" of the
government. See United States v.
Markling, 7 F.3d 1309, 1312 (7th Cir.
1993); United States v. Yasak, 884 F.2d
996, 999 (7th Cir. 1989). Whether or not
Elizalde-Adame intended to reserve her
right to appeal the motion to suppress,
she did not observe these requirements.
By its terms, the written plea agreement
that she signed is unconditional. And, as
we have noted, Elizalde-Adame never
expressly requested during the plea
hearing to enter a conditional guilty
plea or to reserve her right to appeal
the denial of the suppression motion.
Further, neither the district court nor
the government ever assented to the entry
of a conditional plea.

  While we have ruled that the writing
requirement of Fed. R. Crim. P. 11(a)(2)
is not jurisdictional and have therefore
upheld the validity of conditional pleas
absent a writing in certain limited
circumstances, those circumstances are
not present here. We have found a valid
conditional plea without a written plea
agreement where: (1) the government did
not challenge the defendant’s
characterization of his plea as
conditional or his right to bring a
particular appeal; (2) something in the
record (for example, the transcript of
the plea hearing or correspondence
between the government’s and the
defendant’s attorneys) plainly showed
that the government had agreed to a
conditional plea and that the district
court had accepted it; and (3) we felt
assured that our decision on the matter
appealed would dispose of the case. See
Markling, 7 F.3d at 1313; Yasak, 884 F.2d
at 999-1000. Here, however, we are
confronted not merely with the absence of
a written conditional plea, but with the
presence of a written unconditional plea.
Moreover, the government vigorously
disputes Elizalde-Adame’s
characterization of her plea as
conditional and denies that she has the
right to bring the instant appeal.
Finally, nothing in the record
demonstrates that the district court
accepted a conditional plea, or that the
government either approved of a condi-
tional plea or expressly waived its right
to argue that such a plea must be made in
writing. The unconditional plea agreement
itself states that "[d]efendant and her
attorney acknowledge that no threats,
promises, or representations have been
made, nor agreements reached, other than
those set forth in this Agreement, to
cause defendant to plead guilty," R. 32,
para. 17, and also that "defendant
understands that she is waiving all
appellate issues that might have been
available if she had exercised her right
to trial." Id. at para. 11. During the
plea hearing, the court asked Elizalde-
Adame if she had read the plea agreement
before signing it and if she had
discussed the plea agreement with her
attorney, and she answered yes to both
questions. Moreover, nothing in the plea
hearing transcript indicates that either
the district court or the government
accepted a conditional plea. In arguing
to the contrary, Elizalde-Adame notes
that at one point during the plea hearing
the district court asked the Assistant
United States Attorney ("AUSA"), "is
there a waiver of appellate rights?," and
the AUSA responded, "[t]here is not,
Your Honor." However, when read in
context, it is clear that the district
court was asking whether the plea
agreement provided for a waiver of
Elizalde-Adame’s right to appeal her
sentence, and nothing in the above
exchange even remotely suggests that
either the court or the government
thought that Elizalde-Adame was
preserving her right to appeal the
suppression motion, or that the
government was waiving any of the
requirements of sec. 11(a)(2). Thus, we
find that Elizalde-Adame’s plea was
unequivocally unconditional, and that we
therefore lack jurisdiction to hear this
appeal.

  One final issue merits brief comment. In
her reply brief, Elizalde-Adame argues
that the government should be estopped
from challenging the validity of her
"conditional plea" because it led her to
believe both during and after the plea
negotiations that her plea would not
constitute a waiver of her right to
appeal the suppression issue. She also
argues that due process principles
require the government to "adhere to its
commitment" after it "induced" her to
"surrender her constitutional rights."
Whatever the merits of these arguments,
there are two good reasons why we should
not address them. First, Elizalde-Adame
raises the arguments for the first time
in her reply brief, and we ordinarily do
not consider such arguments. See United
States v. Suter, 755 F.2d 523, 527 (7th
Cir. 1985). Second, even if we were to
overlook this, we still could not
consider the claims because they are
based on factual material outside of the
record which was never presented to the
district court. See United States v.
Phillips, 914 F.2d 835, 840 (7th Cir.
1990); United States v. Gonsalves, 735
F.2d 638, 641 (7th Cir. 1984); United
States v. Gaertner, 583 F.2d 308, 312
(7th Cir. 1978). Elizalde-Adame moved
under Fed. R. App. P. 10(e) to supplement
the record with letters exchanged between
her attorney and the attorney for the
government during plea negotiations which
discussed the preservation of her right
to appeal the suppression motion. The
district court denied the motion,
correctly noting that Rule 10(e) does not
allow a party to add materials to the
record on appeal which were not before
the district court. See United States v.
Alcantar, 83 F.3d 185, 191 (7th Cir.
1996); United States v. Hillsberg, 812
F.2d 328, 336 (7th Cir. 1987). Elizalde-
Adame then made the same motion to this
Court, and met with the same result. The
purpose of rule 10(e) is to ensure that
the record on appeal accurately reflects
the proceedings in the trial court
(thereby allowing us to review the
decision that the trial court made in
light of the information that was
actually before it), not to enable the
losing party to add new material to the
record in order to collaterally attack
the trial court’s judgment. Therefore,
because they rely on undocketed material,
we cannot consider Elizalde-Adame’s due
process and estoppel claims.
CONCLUSION

  Because Elizalde-Adame did not reserve
the right to appeal the denial of her
motion to suppress when she pled guilty,
we lack jurisdiction to hear this appeal.
Therefore, we DISMISS the appeal.
