                            In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-2447

U NITED S TATES OF A MERICA,
                                               Plaintiff-Appellee,
                               v.

T ELLY K INGCADE,
                                           Defendant-Appellant.


           Appeal from the United States District Court
               for the Western District of Wisconsin.
           No. 07 CR 142—Barbara B. Crabb, Chief Judge.



      A RGUED JANUARY 22, 2009—D ECIDED A PRIL 6, 2009




  Before M ANION and K ANNE , Circuit Judges, and
K ENDALL, District Judge.
  K ANNE, Circuit Judge. On December 5, 2007, a grand
jury returned a two-count indictment against Telly
Kingcade. Kingcade, whose appointed counsel filed
several motions on his behalf, also filed two pro se suppres-



  Honorable Virginia M. Kendall, United States District Judge
for the Northern District of Illinois, is sitting by designation.
2                                                No. 08-2447

sion motions. The district court refused to consider the pro
se motions and adopted in full the magistrate’s report and
recommendation to deny the counseled motions; this
report had also noted that Kingcade’s pro se motions were
not properly before the court. Kingcade pled guilty, but
he preserved the right to appeal adverse determinations
on motions to suppress evidence seized during the exe-
cution of search warrants. Kingcade now argues that the
district court erred in failing to consider de novo his pro se
motion to suppress. We hold that Kingcade did not
preserve the right to appeal an adverse determination
regarding his pro se motions, and we therefore lack juris-
diction to review his claim.


                      I. B ACKGROUND
  During the week of October 1, 2007, law enforcement
received confidential information that Telly Kingcade
was selling cocaine from his apartment in Fitchburg,
Wisconsin. On October 3, police received a warrant to
search Kingcade’s apartment. When officers arrived to
execute the warrant, Detective Dorothy Rietzler was
alerted to the possibility that a safe belonging to Kingcade
was in a nearby apartment in which Theodore Robinson
resided. Rietzler approached Robinson, who gave police
permission to search the apartment. Officers found a safe
in the second bedroom of Robinson’s apartment. A drug
detection dog alerted to the presence of drugs in the
safe. Law enforcement seized the safe and received a
warrant to search it the following day. The safe con-
tained cocaine base, cash, and drug paraphernalia.
No. 08-2447                                                3

  On December 5, 2007, a grand jury returned a two-count
superseding indictment against Kingcade. Count two
charged Kingcade with possession with the intent to
distribute fifty grams or more of cocaine base.1 Attorney
David Mandell was appointed as defense counsel. On
December 17, Mandell filed numerous motions on
Kingcade’s behalf, including motions to suppress evi-
dence obtained pursuant to the search warrants for the
safe and Kingcade’s apartment. Mandell later withdrew
as Kingcade’s counsel, and Attorney Robert Ruth was
appointed. On February 22, 2008, Ruth filed additional
motions on Kingcade’s behalf, including a motion to
suppress evidence obtained as a result of the warrantless
seizure of the safe.
  On March 10, 2008, Kingcade filed two pro se motions.
The first, entitled “Motion to Suppress Consent to Search,”
argued that Robinson had not knowingly and intelligently
consented to the search of his apartment. The second,
entitled “Motion to Suppress the Seizures [sic] of the
Safe,” argued that the warrantless search of Robinson’s
apartment and seizure of the safe during that search
violated the Fourth Amendment of the United States
Constitution because the police could have obtained a
warrant prior to searching the premises. On March 17,
Kingcade requested a new attorney.
  On March 21, the magistrate judge conducted an
ex parte hearing to discuss Kingcade’s dissatisfaction with


1
   Count one, which charged Kingcade with a firearms offense,
is not relevant for purposes of this appeal.
4                                               No. 08-2447

Ruth’s representation. The judge informed Kingcade that
even if he were to represent himself, the court would not
allow him to pursue his pro se motions because they
were untimely. He told Kingcade that if he felt his attor-
neys had failed to raise viable Fourth Amendment
issues, he could later raise an ineffective assistance of
counsel claim. He then made clear to Kingcade that he
was not considering the pro se motions because Kingcade
was represented and they were therefore not properly
before the court. The magistrate judge went on to say
that even if he were to make a recommendation, he
would recommend that the court deny them.
  On March 21, 2008, the magistrate judge entered a
report and recommendation in which he recommended
that the court deny the motions to suppress filed by
Kingcade’s attorneys. This report noted that Kingcade
had been “rebuffed by the court” in his requests to file pro
se motions because he was represented by counsel. In a
footnote, the magistrate judge stressed that the issues
presented in the pro se motions were not properly before
the court, and that he had informed Kingcade that, in
his opinion, his attorneys’ failure to raise those issues
was not ineffective assistance of counsel.
  On March 25, Kingcade pled guilty to Count 2 of the
indictment. Paragraph twelve of the plea agreement read:
      The defendant has filed motions to suppress
    evidence seized during the execution of search
    warrants in October 2007. Pursuant to Rule
    11(a)(2), Federal Rules of Criminal Procedure, the
    government consents to the defendant entering a
No. 08-2447                                               5

    conditional plea of guilty, reserving by this plea
    agreement letter his right to have an Appellate
    Court review an adverse determination of his
    motions to suppress. If the defendant prevails at
    the district court, or on appeal, he may then with-
    draw his guilty plea.
On April 8, the district court adopted in full the magis-
trate’s report and recommendation regarding the
motions to suppress. On June 3, Kingcade was sentenced
to 135 months’ imprisonment.


                       II. A NALYSIS
  Kingcade argues that because the magistrate judge
discussed his pro se suppression motions at the hearing
on March 21, the district court judge erred in failing to
address the motions de novo. Before we may reach
Kingcade’s argument, however, we must determine
whether he has preserved the right to appeal the
issues raised in his pro se motions. For the reasons that
follow, we conclude that he has not.
  With the consent of the government and approval of the
court, 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
pretrial motion.” Fed. R. Crim. P. 11(a)(2); see also United
States v. Cain, 155 F.3d 840, 842 (7th Cir. 1998). This is a
narrow exception to the ordinary rule that a defendant
who pleads guilty cannot appeal his conviction. United
States v. Dimitrov, 546 F.3d 409, 416 (7th Cir. 2008). To
6                                                No. 08-2447

preserve an issue for appeal, a conditional plea must
“precisely identify which pretrial issues the defendant
wishes to preserve for review.” United States v. Markling, 7
F.3d 1309, 1313 (7th Cir. 1993). All non-jurisdictional
issues not specifically preserved in the conditional plea
agreement are waived. See, e.g., Dimitrov, 546 F.3d at 416
(holding that although the defendant had preserved his
objection to the constitutionality of a “mental state”
requirement, he had not preserved another constitu-
tional objection); United States v. Doherty, 17 F.3d 1056,
1058-59 (7th Cir. 1994) (noting that although the plea
agreement reserved the right to challenge the indict-
ment’s failure to state a violation of a statute, the
defendant “did not reserve the right to challenge ‘the
sufficiency of the indictment’ in other respects”); see
also Cain, 155 F.3d at 842 (“[A] guilty plea constitutes a
waiver of non-jurisdictional defects occurring prior to
the plea.”).
  We have held that Rule 11’s requirement that a condi-
tional plea be in writing is not jurisdictional and that a
conditional plea may be found in the limited circumstance
where the parties to the agreement clearly intended
that the defendant’s right to appeal an issue would be
preserved. See United States v. Elizalde-Adame, 262 F.3d 637,
639 (7th Cir. 2001); Markling, 7 F.3d at 1313. The cases
examining the intent to preserve the right to appeal
typically lack a written plea agreement, however, which
is a significant difference from the case now before us.
Written plea agreements are contracts, and we interpret
them according to general principles of contract law.
United States v. Hernandez, 544 F.3d 743, 750 (7th Cir. 2008).
No. 08-2447                                             7

Thus, unlike those cases involving verbal agreements,
we look to extrinsic evidence of the parties’ inten-
tions—possibly found, for example, in a plea collo-
quy—only when the written contract is ambiguous. Cf.
United States v. Given, 164 F.3d 389, 396 (7th Cir. 1999)
(holding that the district court properly declined to
consider extrinsic evidence where the plea agreement
was unambiguous). In this context, we have the power
to review issues clearly preserved in the written agree-
ment, or, if that agreement is ambiguous, issues the
parties clearly intended to preserve for appeal.
  We find no ambiguity in the language of Kingcade’s
agreement. The agreement explicitly gave Kingcade the
right to appeal adverse determinations regarding his
motions to suppress evidence seized during the execution
of search warrants. Kingcade’s pro se motions, on the
other hand, challenged the consensual search of Robinson’s
apartment and warrantless seizure of the safe.
  Kingcade’s pro se motions challenged neither the war-
rant to search the safe nor the one issued for Kingcade’s
apartment. The October 3, 2007, warrant covered only
Kingcade’s apartment. Police searched Robinson’s apart-
ment pursuant to his consent, and they seized the safe
without a warrant. The next day, police obtained a
search warrant for the safe. In other words, both the
search of Robinson’s apartment and the seizure of the
safe, the actions that Kingcade challenged in his pro se
motions, were done without a warrant. In fact, Kingcade
explicitly challenged the absence of a warrant to search
Robinson’s apartment or seize the safe, arguing that
8                                            No. 08-2447

Robinson’s consent was not valid and that there was no
excuse for the police’s failure to obtain a warrant prior
to the search. The plain language of the plea agreement
does not cover these issues, because they do not con-
cern the “execution of search warrants.”
  Furthermore, even if the language of the plea agree-
ment were ambiguous, nothing in the plea colloquy or
anywhere else in the record indicates that the govern-
ment and Kingcade clearly intended for the language in
the plea agreement to cover the pro se motions. The only
mention of the agreement was when the Assistant
United States Attorney read Paragraph Twelve to the
court and stated that if Kingcade were to prevail on the
pending motions, he could withdraw his plea. Kingcade
clearly intended to preserve his right to appeal some
motions to suppress, and we would be faced with a
different situation if the plea agreement would leave
Kingcade with no issues to appeal. But that is not the
case. The motions filed by Attorney Mandell, both
entitled “Motion to Suppress Search Warrant,” challenged
the validity of the search warrants and therefore fell
within the language of the plea agreement. Thus, because
we find no evidence that the language of the plea agree-
ment was intended to cover Kingcade’s pro se motions,
we lack jurisdiction to review the merits of his claim.


                   III. C ONCLUSION
  Because Kingcade did not condition his plea agreement
on his right to appeal an adverse determination on the
No. 08-2447                                               9

issues presented in his pro se motions, we lack jurisdiction
to review his claim. This appeal is D ISMISSED.




                           4-6-09
