                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                    MARCH 11, 2008
                                                  THOMAS K. KAHN
                            No. 07-14023
                                                       CLERK
                         Non-Argument Calendar
                       ________________________

                   D. C. Docket No. 07-20154-CR-JEM

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                  versus

JEROME HAYES,

                                                    Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (March 11, 2008)

Before MARCUS, PRYOR and FAY, Circuit Judges.

PER CURIAM:
       Jerome Hayes appeals his convictions for possession with intent to distribute

crack cocaine, 21 U.S.C. § 841(a)(1) and (b)(1)(C); possession with intent to

distribute marijuana, 21 U.S.C. § 841(a)(1) and (b)(1)(D); and being a convicted

felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1) and 924(e). Hayes argues

that his guilty plea was not knowing and voluntary because he believed that he was

reserving the right to appeal the district court’s denial of his motion to suppress.

Hayes asserts that both he and his counsel believed that the plea was conditional,

particularly in light of the court’s acknowledgment that counsel had reserved the

right to appeal the suppression issues. Hayes contends that, because he pled guilty

based on his mistaken belief that the suppression issues were preserved for appeal,

he did not understand the consequences of his plea. The government concedes that

the plea colloquy failed to satisfy a core concern of Fed.R.Crim.P. 11, that is, that

Hayes understood the consequences of his guilty plea.1 For the reasons set forth

more fully below, we vacate Hayes’s conviction and remand to the district court

for further proceedings.

       A district court’s refusal to suppress evidence is non-jurisdictional and is

waived by a guilty plea. United States v. McCoy, 477 F.2d 550, 551 (5th Cir.

1973). “A defendant who wishes to preserve appellate review of a


       1
        The court appreciates and applauds the candor of counsel for the government. Such a
concession is in accord with the highest standards and traditions of our profession.

                                              2
non-jurisdictional defect while at the same time pleading guilty can do so only by

entering a ‘conditional plea’ in accordance with Fed.R.Crim.P. 11(a)(2).” United

States v. Pierre, 120 F.3d 1153, 1155 (11th Cir. 1997). The Federal Rules of

Criminal Procedure, however, provide that “[w]ith the consent of the court and the

government, a defendant may enter a conditional plea of guilty . . . reserving in

writing the right to have an appellate court review an adverse determination of a

specified pre-trial motion.” Fed.R.Crim.P. 11(a)(2). “[F]or Rule 11 purposes,

silence or inaction by the government is not consent.” Pierre, 120 F.3d at 1156.

      Here, the record indicates that Hayes pled guilty to the charges in the

indictment without the benefit of a written plea agreement. Moreover, during the

plea colloquy, the government was silent as to defense counsel’s insistence that

Hayes was pleading guilty while reserving the right to appeal the district court’s

denial of his motion to suppress. Accordingly, because neither the government nor

the district court gave its express consent for Hayes to enter a conditional plea, his

plea was not conditional as defined in Rule 11. See id.

      Nevertheless, in Pierre, we found that the defendant’s unconditional plea did

not preclude relief. Id. In that case, Pierre entered a guilty plea only after he was

assured by the district court that he had preserved for appeal issues concerning the

denial of his constitutional and statutory right to a speedy trial. Id. at 1155. In



                                           3
addition, Pierre’s counsel also explicitly expressed his intent to preserve the speedy

trial issues for appeal. Id. We noted that, when accepting a guilty plea, a court

must address three core concerns underlying Rule 11: “‘(1) the guilty plea must be

free from coercion; (2) the defendant must understand the nature of the charges;

and (3) the defendant must know and understand the consequences of his guilty

plea. If one of the core concerns is not satisfied, then the plea is invalid.’” Id. at

1156 (quoting United States v. Siegel, 102 F.3d 477, 480-81 (11th Cir. 1996)).

Accordingly, we held that because Pierre had “entered . . . [his] guilty plea only on

the reasonable (but mistaken) belief that [he] had preserved [the issue] for appeal,

his plea was, as a matter of law, not knowing and voluntary.” Id. at 1156.

      Here, as in Pierre, the record demonstrates that Hayes entered his guilty plea

based on the mistaken belief that he had preserved for appeal issues concerning the

suppression of evidence obtained as the result of an illegal arrest. During the plea

colloquy, Hayes’s counsel explicitly stated that Hayes was reserving the right to

appeal the district court’s earlier denial of his pre-trial motion to suppress. The

district court acknowledged defense counsel’s attempt to preserve that issue for

appeal and responded that it “assumed that [Hayes had] the right” to do so.

Moreover, at sentencing, the district court again acknowledged counsel’s attempt

to preserve the issue for appeal and explicitly stated that the objections within



                                            4
Hayes’s motion to suppress “remain[ed] viable.” Therefore, because Hayes

mistakenly believed that he had reserved the right to appeal the denial of his

motion to suppress, he did not fully understand the consequences of his plea. See

Pierre, 120 F.3d at 1156-57. Accordingly, Hayes’s guilty plea failed to satisfy a

core concern of Rule 11. Id. at 1157.

      In light of the foregoing, we VACATE Hayes’s conviction and REMAND

to the district court for further proceedings.




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