                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-4465


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAY MAURICE THARPS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:14-
cr-00161-PWG-1)


Submitted:   May 27, 2016                     Decided:    July 1, 2016


Before AGEE and    THACKER,    Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Jennifer R. Sykes, Thomas M. Sullivan, Assistant
United States Attorneys, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Jay Maurice Tharps appeals from his convictions, following

his guilty pleas, to possession of a firearm and ammunition by a

felon,     possession           with     intent    to      distribute      cocaine         and

marijuana, and possession of a firearm in furtherance of a drug

trafficking crime.          On appeal, he argues that the district court

erroneously denied his motions to suppress and for disclosure of

an    informant’s        statement.         We     vacate    the     district       court’s

judgment and remand for further proceedings.

      Generally, “when a defendant pleads guilty, he waives all

nonjurisdictional defects in the proceedings conducted prior to

entry of the plea, and thus has no nonjurisdictional ground upon

which    to     attack    that        judgment    except    the     inadequacy       of    the

plea.”        United States v. Smith, 640 F.3d 580, 591 (4th Cir.

2011)     (alteration           and     internal     quotation        marks        omitted).

However, a defendant may reserve his right to appeal pretrial

rulings       by    entering      a     conditional        guilty    plea.          Such     a

conditional guilty plea must be “[w]ith the consent of the court

and the government,” and a defendant must “reserv[e] in writing

the     right      to    have     an    appellate       court     review      an    adverse

determination of a specified pretrial motion.”                        Fed. R. Crim. P.

11(a)(2).          Although “the writing requirement [may be] satisfied

when the reservation is so clearly shown on the record that

there is no doubt that a conditional plea was agreed to[,] . . .

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the second and third requirements under the Rule — Government

consent    and     court     approval       —    are    mandatory          and     cannot       be

avoided.”       United States v. Fitzgerald, ___ F.3d ___, ___, No.

14-4795,    2016     WL    1660147,     at       *3    (4th    Cir.       Apr.     27,    2016)

(internal quotation marks omitted).

      In Fitzgerald, we held that the defendant had not entered a

valid     conditional      guilty     plea        where       the     record       failed      to

demonstrate       that    the    Government          affirmatively          agreed       to    the

conditional plea.          Id. at *4-5.          There, as here, the Government

stood silent while the district court informed the defendant

that he had reserved his right to appeal the court’s rulings on

the     preplea    motions.          Id.        at     *1-2.         Additionally,             the

Government’s       preplea        letter        provides       that       there      were       no

agreements or promises between the parties, and the Government

never    affirmatively          indicated       at    the   plea         colloquy    that       it

agreed that Tharps could appeal the district court’s preplea

rulings.     We therefore conclude “that the mandatory government-

consent requirement was never satisfied,” id. at *5, and, thus,

that Tharps did not enter a valid conditional plea.

      Because Tharps did not enter a valid conditional plea, “we

still    must     consider      whether     an       unconditional          plea    has       been

entered or whether no valid plea has been entered.”                                 Id. at *6

(internal quotation marks omitted).                     “We may treat [an invalid

conditional]       plea    as     unconditional         only        if    [the     defendant]

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entered    such    a     plea,    including       a    waiver          of    appeal        rights,

knowingly, intelligently, and with sufficient awareness of the

relevant circumstances and likely consequences.”                               Id. (internal

quotation marks omitted).

     We conclude Tharps did not enter a knowing and voluntary

unconditional plea.              Tharps’ counsel initially indicated that

Tharps    wished       to   plead   guilty       without         an     agreement          because

Tharps sought to preserve his right to appeal.                               During the plea

hearing,    counsel         emphasized      that       an        appellate       waiver         was

conspicuously absent from the district court’s colloquy.                                    As in

Fitzgerald, “the district court apparently understood [Tharps’]

plea to be conditioned on his right to appeal the denial of his

suppression       [and      disclosure]         motion[s],             and    that     [Tharps]

entered    his    plea      in   reliance    on       the    assurance          that       he   had

preserved that issue.”            Id.

     Accordingly, we vacate the district court’s judgment and

remand 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

this court and argument would not aid the decisional process.

                                                                   VACATED AND REMANDED


     ∗ We express no opinion on the merits of Tharps’ substantive
arguments.



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