                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4492


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

YOUSIF IBRAHIM SHERIF,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Claude M. Hilton, Senior
District Judge. (1:08-cr-00360-CMH-1)


Submitted:   May 11, 2010                  Decided:   June 9, 2010


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Stephen Jones, JONES, OTJEN, DAVIS & TEBOW, Enid, Oklahoma, for
Appellant.   Dana J. Boente, United States Attorney, Gordon D.
Kromberg, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

         Yousif      Sherif         was   indicted      on    one     count    of    bulk       cash

smuggling, 31 U.S.C. § 5332(a), one count of failing to file a

report of importation of currency and monetary instruments, 31

U.S.C. § 5324(c)(1), and one count of making a materially false

statement, 18 U.S.C. § 1001(a).                       Pursuant to what was presented

as   a    conditional           plea      agreement,        Sherif    pled    guilty       to    the

§ 5324(c)(1) charge, and the government dismissed the remaining

counts.        Sherif’s plea agreement purports to preserve his right

to appeal the district court’s denial of his pre-trial motions

to   suppress         and      to    disclose    electronic          surveillance.           After

accepting           the   plea       agreement,       the     district       court       sentenced

Sherif to one year of probation.                      Sherif now appeals both issues

preserved in his plea agreement.

         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.

United        States      v.   Bundy,      392   F.3d       641,     645   (4th     Cir.    2004).

However,        a    conditional          plea   is   not     valid     if    it    purports      to

preserve for appeal an issue that is not case-dispositive.                                       Id.

at 647.        An issue is case-dispositive if (1) an appellate ruling

in the defendant's favor would require dismissal of the charges

or suppression of essential evidence, or (2) an appellate ruling

in the government's favor would require an affirmance of the

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judgment of conviction.                Id. at 648.           If a conditional plea is

invalid, we must vacate the judgment of conviction and remand

the   case      to    the    district        court    to     allow       the    defendant       to

determine whether to enter into a new plea agreement or proceed

to trial. Id. 649-50.

      After       the       parties     filed        their     appellate          briefs,       we

requested       supplemental          briefs    on     the    issue        of    whether      the

conditional plea in this case is proper in light of Bundy.                                      In

his supplemental brief, Sherif argues that his guilty plea is

invalid because it preserves for appeal an issue that is not

case-dispositive –- the denial of his motion for disclosure of

electronic surveillance.                However, in its supplemental brief,

the   government         argues       that     this    issue        is     case-dispositive

because,     if      this    court    were     to    reverse    the       district         court’s

denial     of     this      motion,     the        government        would       dismiss      the

remaining       charge       against     Sherif        rather        than       disclose      any

electronic surveillance.

      Regardless            of   the      government’s          intended              litigation

strategy, a ruling in Sherif’s favor on the discovery motion

would not require dismissal.                   Rather, dismissal would be at the

government’s          discretion.            Therefore,        it     is        not    a    case-

dispositive issue. For this reason, we must vacate the judgment

of conviction and remand this case to the district court to

allow Sherif to either enter a valid plea or proceed to trial.

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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




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