                                              NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ___________

                    No. 18-2924
                    ___________

      UNITED STATES OF AMERICA

                          v.

                CHAY WRIGHT,
                         Appellant
     ____________________________________

   On Appeal from the United States District Court
       for the Middle District of Pennsylvania
               (No. 3:16-cr-00255-001)
          District Judge: Robert D. Mariani
    ____________________________________
     Submitted under Third Circuit L.A.R. 34.1(a)
         on Thursday, November 14, 2019

Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges.

         (Opinion filed: November 27, 2019)
                                        OPINION*


KRAUSE, Circuit Judge.

       Appellant Chay Wright appeals his conviction and sentence, arguing that the

District Court erred by providing misinformation at his change of plea hearing and then

subsequently erred again by relying on erroneous facts at his sentencing hearing. Because

we agree that the District Court’s inadvertent misstatement at Wright’s change of plea

hearing rendered his waiver of rights invalid, we will vacate and remand on that basis and

need not reach the error at Wright’s sentencing hearing.


                                       Discussion1

       Wright initially pleaded not guilty to possession of heroin, bk-MDEA (ethylone),

cocaine, and crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B). He subsequently changed his plea to guilty. At his change of plea hearing,

Wright asked the District Judge whether “it was possible that the Court would accept a

conditional guilty plea.” JA 40. The following colloquy occurred:

       THE COURT: I can’t do that.
       THE DEFENDANT: You can’t do that?
       THE COURT: No.
       THE DEFENDANT: Okay, well, I just thought it was in my right to ask.


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
       1
         The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                             2
       THE COURT: It is in your right to ask. I’ll sit here and answer any questions
       you have. But I can’t take a conditional plea, no, that’s not something that
       the law allows me to do.
       THE DEFENDANT: Really?
       THE COURT: Really.
       THE DEFENDANT: It’s not in the rule book, huh? There is a such thing as
       a conditional guilty plea, though, correct?
       THE COURT: No.
       THE DEFNDANT: There’s no such thing?
       THE COURT: No.
       THE DEFNDANT: Wow. I don’t know where I got that from then. Okay.

JA 40–41.2 Wright now argues that on the basis of this error we should vacate his

conviction and sentence.

       Both parties frame the error as a defect in the Rule 11 plea colloquy and therefore

argue that either plain error or harmless error review should apply. But the plain error and

harmless error standards of review, set forth in United States v. Vonn, 535 U.S. 55 (2002),

apply only to “violations of [Rule 11], where the district court has failed to inform the

defendant of, and determine that the defendant understands, a factor enumerated in Rule

11(B)(1).” United States v. Goodson, 544 F.3d 529, 539 n.9 (3d Cir. 2008) (internal

quotation marks and citation omitted). “[A] defendant who claims that he was misled or

coerced into entering the agreement . . . challenges the validity of the waiver itself, not the

Rule 11 colloquy.” Id. (emphasis added). We review such a challenge de novo whether

the error has been preserved below or not. Id.




       2
         It is undisputed that at Wright’s sentencing hearing the District Court also
misstated Wright’s single-probation violation as a history of parole violations despite
Wright’s repeated attempts to correct the Court.

                                              3
       The Government argues first that the District Court did not provide incorrect

information because at the time of Wright’s change of plea hearing he could not have

entered a conditional plea. Wright had withdrawn his motion to suppress after a plea

agreement was reached and therefore had not received an adverse determination on a

pretrial motion, and the Government had not acquiesced to a conditional plea. This

argument would have some force if the District Court had stated solely that Wright could

not currently enter a plea. But the Court went further, stating that there was no such thing

as a conditional plea under the Federal Rules. In doing so, it misstated the law. Rule

11(a)(2) provides that “[w]ith the consent of the court and government, a defendant may

enter a conditional plea of guilty.” Fed. R. Crim. P. 11(a)(2). And while we are left to

speculate whether Wright would have reinstated his motion to suppress had he received

accurate information, the District Court’s repetition of the misstatement improperly

precluded his further consideration of the issue.

       The Government also argues that Wright “was fully prepared and willing to enter a

guilty plea” and there is no evidence that he would have changed his mind had he received

accurate information.3 Appellee’s Br. 13. Primarily, the Government bases this argument

on the fact that Wright signed an Acknowledgment of Rights Waived by Guilty Plea prior



       3
         The Government argues too that there is no evidence that it would have acquiesced
to a conditional guilty plea. But this argument mistakes the focus of our inquiry. We assess
whether Wright’s waiver of rights is invalid because he was misled by the District Court.
The Government has not pointed us to evidence in the record that it communicated its
refusal to negotiate a conditional plea to Wright. We therefore cannot say that this refusal
cured the District Court’s misstatement by informing Wright that, at least under the
circumstances, a conditional plea was unavailable.
                                             4
to his change of plea hearing. But this is not the prototypical case where a judge’s failure

to advise a defendant of the rights he is waiving by pleading guilty may be cured by the

execution of a written Acknowledgment of Rights Waived. See, e.g., Goodson, 544 F.3d

at 541. Here the Acknowledgment does nothing to counteract the weighty effect the

District Court’s misstatement likely had on Wright’s understanding of the options available

to him. And there is evidence in the record that Wright was not satisfied with his plea

agreement. He mentioned “certain issues” that “led up to the guilty plea,” JA 39–40, and

asked repeatedly whether he could enter a conditional plea, or at least whether, as a general

matter, the Federal Rules provided for conditional pleas.

       Given our standard of review and the potential significance of the District Court’s

inadvertent misstatement, we will vacate and remand to the District Court to exercise its

discretion in addressing these matters. In so doing, we do not foreclose the District Court’s

ultimate imposition of the same sentence.



                                        Conclusion
       For the foregoing reasons, we will vacate the conviction and sentence and remand

to the District Court.




                                             5
