                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4795


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ROBERT FITZGERALD,

                Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:13-cr-00605-GLR-1)


Argued:   March 22, 2016                  Decided:   April 27, 2016


Before TRAXLER, Chief Judge, and Wilkinson and Keenan, Circuit
Judges.


Vacated and remanded by published opinion. Chief Judge Traxler
wrote the opinion in which Judge Wilkinson and Judge Keenan
joined.


ARGUED: Michael Alan Wein, Greenbelt, Maryland, for Appellant.
Michael Clayton Hanlon, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Andrew R. Szekely,
LAW OFFICES OF ANDREW R. SZEKELY, LLC, Greenbelt, Maryland, for
Appellant.    Rod J. Rosenstein, United States Attorney, H.
Brandis Marsh, Jr., Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
TRAXLER, Chief Judge:

     With      assurance         from     the    district      court         that      he   was   not

waiving his right to appeal the court’s earlier denial of a

suppression motion, Robert Fitzgerald pled guilty to one count

each of possessing a firearm as a felon, possessing heroin with

intent to distribute, and possessing marijuana with intent to

distribute.            See 18 U.S.C. § 922(g)(1); 21 U.S.C. § 841(a).                              He

now appeals his convictions, arguing that the district court

erred    in    denying          the    suppression         motion.           He     alternatively

contends that if he did not preserve his right to appeal the

denial of the motion, we should vacate his guilty plea.                                     Because

we agree with Fitzgerald’s alternative position, we vacate his

convictions and remand for further proceedings.

                                                 I.

     A    Maryland          grand       jury     returned         an    indictment          against

Fitzgerald         for    one    count    each       of    possessing        a    firearm     as    a

felon,    possessing             heroin     with          intent       to    distribute,          and

possessing marijuana with intent to distribute.                                  During pretrial

proceedings, Fitzgerald moved to suppress certain evidence and

moved    for       a   Franks     hearing       regarding      what         he    alleged    to    be

knowing and material false statements in an application for a

warrant       to       search    Fitzgerald’s          residence.                See    Franks     v.

Delaware,      438       U.S.    154     (1978).          After    taking         testimony       and

hearing argument, the district court denied his motions.

                                                 2
     Fitzgerald        later   rejected        a     plea   offer    made      by    the

government but nonetheless indicated his willingness to enter an

“open    plea”    to   the   charges      in   the    indictment.        The   parties

therefore    moved     forward      without    a     written   agreement,      and    no

writing addressed issues that would be preserved for appeal.

     On April 15, 2014, Fitzgerald appeared before the district

court to plead guilty, and the district court began its Rule 11

plea colloquy.         Of particular significance to this appeal was a

discussion between the court, defense counsel, and Fitzgerald

concerning what appellate rights Fitzgerald would retain after

pleading guilty.         Defense counsel stated that he was sure that

Fitzgerald       did   not   wish    to    waive     his    right   to   appeal      his

sentence, and the court confirmed that he was not waiving that

right.    The following exchange then took place:

          [DEFENSE COUNSEL]: And it certainly is one of
     the reasons the Court might guess that he wants to
     appeal is to take up the issue of the suppression
     hearing, and I think he’s hearing you say maybe he’s
     waiving that by entering a plea of guilty, and that’s
     not the case.

            Do you understand?

          THE COURT: Right.    So, in other words, if I end
     up accepting your plea of guilty in this case, and I’m
     asking you all these questions, it could be that your
     ability to argue that your plea was not entered into
     both a knowing and voluntary manner would be to a
     certain    extent     compromised,    because   you’re
     acknowledging that you’re entering into it in a
     knowing and voluntary manner right now.

                                           3
    Do you understand what I am saying?

S.S.A.    33.    When    Fitzgerald     stated    he    did   not    understand,

defense counsel took a moment to confer with his client, after

which     Fitzgerald    initially     stated     that   he    had    no   further

questions    regarding    how   his    decision    to    plead      guilty   would

affect his ability to appeal.          When Fitzgerald then stated that

he actually had one further question, the court again allowed

him to confer with his attorney, after which counsel stated that

he did not believe any further advice on the topic would be

needed.

    Nevertheless, the district court briefly continued on that

subject:

         THE COURT: Okay. Now, of course, you retain your
    ability to be able to appeal any sentence that I would
    impose, because you haven’t waived that.

         You retain your right to challenge . . . any
    sentence that I end up imposing. You certainly retain
    your ability to appeal any decision the Court has made
    with regard to a motion to suppress tangible or
    derivative evidence to the extent that the Court ruled
    against you.

         [DEFENSE COUNSEL]: I just do want to put on the
    record, it is sort of an appellate issue, that we have
    pending in the state courts a petition for writ of
    coram nobis, which would attack one of the predicate
    convictions, and he would no longer be a career
    offender.

         I just want to put on the record that nothing we
    say in this plea agreement is going to disallow us
    from pursuing that if we succeed and bring it back
    under Section 2255.



                                       4
S.S.A. 34-35 (emphasis added).                   The district judge asked the

prosecutor if the government agreed that Fitzgerald would not be

so   barred   if     his    attack     on       his     predicate      conviction     was

successful.        The    prosecutor,       who       had   previously      been   silent

throughout the entire discussion of appellate rights, answered

affirmatively.

     As     the    plea     colloquy        continued,         the     district     court

eventually asked the prosecutor to review the essential elements

of each of the charged offenses and the facts supporting those

elements.     At the end of the colloquy, the court asked both

counsel if they believed Fitzgerald had been properly advised.

Defense counsel stated that he did.                         However, the prosecutor

stated that he believed there needed to be a record made of the

fact that Fitzgerald reviewed and rejected a plea offer from the

government.       The court proceeded to question Fitzgerald about

the plea offer, and Fitzgerald stated that he reviewed it with

his attorney, understood it, discussed it with his attorney, and

rejected it.         The court then asked the prosecutor, “Anything

else?”      S.S.A.        The   prosecutor        responded,         “No,   Your   Honor,

that’s perfect.”         S.S.A. 49.

     The district court then accepted Fitzgerald’s plea.                              The

court eventually sentenced Fitzgerald to an aggregate term of

130 months’ imprisonment.



                                            5
       Fitzgerald        now    appeals      his      convictions,      challenging       the

denial of his suppression motion and his motion for a Franks

hearing.          In their initial briefs to us, both parties assumed

that    Fitzgerald’s           plea    was     a     valid   conditional         plea    that

reserved his right to appeal these issues.                       See Fed. R. Crim. P.

11(a)(2).           Nevertheless,         we       ordered   the       parties    to     file

supplemental briefs on this question.

                                               II.

                                               A.

       The    parties     both     argue       that    Fitzgerald       entered    a    valid

conditional guilty plea and urge us to address the merits of his

appeal.      We conclude, however, that no valid conditional guilty

plea was entered.

       It    is    the   general      rule     that    “[w]hen     a   defendant        pleads

guilty,      he      waives      all      nonjurisdictional            defects     in     the

proceedings conducted prior to entry of the plea, and thus has

no non-jurisdictional 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)      (internal       quotation       marks

omitted). However, Federal Rule of Criminal Procedure 11(a)(2)

provides an exception:

       With the consent of the court and the government, a
       defendant may enter a conditional plea of guilty or
       nolo contendere, reserving in writing the right to
       have   an    appellate  court  review   an   adverse
       determination of a specified pretrial motion. A

                                                6
     defendant who prevails on appeal may then withdraw the
     plea.

We   have   explained    that    the    writing     requirement       “‘ensure[s]

careful attention to any conditional plea’ and [makes] plain to

the parties and the court ‘that a particular plea was in fact

conditional’ as well as ‘precisely what pretrial issues have

been preserved for appellate review.’”              United States v. Bundy,

392 F.3d 641, 645 (4th Cir. 2004) (quoting Fed. R. Crim. P. 11

advisory note).      The government-consent requirement “‘ensure[s]

that a conditional plea will be allowed only when the decision

of the court of appeals will dispose of the case either by

allowing    the   plea   to   stand    or   by   such   action   as    compelling

dismissal of the indictment or suppressing essential evidence.’”

Id. (quoting Fed. R. Crim. P. 11 advisory note (alteration in

original)).        And   the    court-approval          requirement     similarly

“ensure[s] that ‘the defendant is not allowed to take an appeal

on a matter which can only be fully developed by proceeding to

trial.’”    Id. (quoting Fed. R. Crim. P. 11 advisory note). 1



     1    In addition to the rule’s explicit requirements, we
have held that a conditional plea must “be limited to case-
dispositive issues.” United States v. Bundy, 392 F.3d 641, 645
(4th Cir. 2004).      This additional requirement serves the
expressed purposes of conditional pleas “to limit the use of
conditional pleas based on two separate, but related, concerns:
first, that the conditional plea promote judicial economy, and
second, that the conditional plea not be employed in a manner
that renders appellate review difficult or impossible.” Id. at
646.


                                        7
     Although     Rule       11(a)(2)       purports        to     require    that     the

reservation of rights to appeal the issues in question be in

writing, we have deemed the writing requirement satisfied when

the reservation is “so clearly shown on the record that there is

no doubt that a conditional plea was agreed to.”                           United States

v.   Abramski,    706       F.3d    307,    314      (4th    Cir.    2013)     (internal

quotation marks omitted); see also United States v. Yasak, 884

F.2d 996, 1000 (7th Cir. 1989) (“The transcript of the plea

hearing   provides      a    writing       of   sorts.”).           This    approach    is

consistent with the notion that “an appellate court can pardon

the informalities of a conditional plea so long as the record

demonstrates     that       the     spirit      of    Rule        11(a)(2)    has    been

fulfilled.”      United States v. Bell, 966 F.2d 914, 916 (5th Cir.

1992).    Yet     it    also       “comports      with      the   general     rule   that

conditions to a plea are not to be implied.”                       Bundy, 392 F.3d at

645 (internal quotation marks omitted). 2                         In contrast to the

somewhat flexible approach we have taken regarding the writing

requirement, we have noted that “[t]here is no doubt that the


     2    Notwithstanding our creation of this exception to the
writing requirement, we emphasize that clearly the better
practice is to set out the reservation of rights in writing.
See United States v. Yasak, 884 F.2d 996, 1000 (7th Cir. 1989)
(“District courts should follow Rule 11’s literal language and
insist on written pleas under Rule 11(a)(2).        The parties
likewise should insist on them.      This is especially so for
defendants, for they have the most to lose if a plea is held
invalid.”).


                                            8
second      and    third       requirements            under    the   Rule      –     Government

consent      and    court       approval       –       are     mandatory     and      cannot     be

avoided.”         Id.; see also id. (“The Government must affirmatively

agree to the plea, and the district court must exercise its own

judgment in approving it.”).

       In    this     case,       even      assuming           that   the       rule’s        other

requirements were satisfied, the government-consent requirement

was not.

       Fitzgerald         maintains      that          the   requirement        was    satisfied

when the prosecutor remained silent during the colloquy in which

the district court stated that Fitzgerald would retain the right

to appeal the denial of his suppression motion.                             Fitzgerald also

attempts to draw support from the fact that the government takes

the position on appeal that the government-consent requirement

was satisfied.            For its part, the government concedes that a

valid       conditional         plea     was       entered        only     if       the   record

demonstrates its affirmative assent to the conditional nature of

the plea.          But the government argues that the record in fact

demonstrates        its    affirmative         assent.           We   disagree        with     both

parties.

       Initially,         we    note   that        while       Rule   11(a)(2)         does     not

explicitly define what amounts to the “consent of . . . the

government,” the rule’s advisory notes are informative.                                   At the

time     the       rule        addressing       conditional           guilty          pleas     was

                                                   9
promulgated, conditional guilty pleas were already permitted in

a number of circuits, including the Second Circuit.                               See United

States v. Carrasco, 786 F.2d 1452, 1454 n.3 (9th Cir. 1986).                                 In

United States v. Burke, 517 F.2d 377 (2d Cir. 1975), the Second

Circuit had held that “silence on [the government’s] part is

sufficient assent” to a conditional plea agreement.                              Id. at 379.

Rule 11’s Advisory Committee notes explain, however, that Rule

11(a)(2)’s       specific       requirement         that       the   reservation       of    the

right to appeal certain issues must be in writing would allow

courts     “to    avoid     entry       of   a      conditional         plea    without     the

considered acquiescence of the government (see United States v.

Burke, supra, holding that failure of the government to object

to entry of a conditional plea constituted consent)”).                                 Fed. R.

Crim. P. 11 advisory note.

      This comment indicates that Rule 11(a)(2) was intended to

be   “a   departure       from    Burke      and     an    insistence      on    unequivocal

government acquiescence.”                Carrasco, 786 F.2d at 1454 n.3; see

Yasak, 884 F.2d at 999.             Accordingly, for the government-consent

requirement        to      be       satisfied,            “[t]he        Government          must

affirmatively agree to the [conditional] plea,” Bundy, 392 F.3d

at 645, meaning that there must be “direct assent requiring no

inference or implication,” United States v. Pierre, 120 F.3d

1153,     1156   (11th     Cir.     1997).          See        Bundy,   392     F.3d   at   645

(“[C]onditions      to     a     plea    are     not      to    be   implied.”     (internal

                                               10
quotation        marks    omitted)).              “[S]ilence        or    inaction     by    the

government is not consent.”                    Pierre, 120 F.3d at 1156.              But see

Bell,     966    F.2d    at     916       (suggesting      that     government’s       silence

could be sufficient under certain circumstances).

      The       record        here        falls    well       short      of      demonstrating

unequivocal        government         acquiescence            to    a    conditional        plea.

Nowhere in the plea colloquy transcript does the court or either

party     make    reference          to    a   conditional         guilty      plea   or    Rule

11(a)(2). 3       The only statement from defense counsel that even

arguably relates to the issue is murky at best.                               Defense counsel

stated, “[I]t certainly is one of the reasons the Court might

guess that [Fitzgerald] wants to appeal is to take up the issue

of the suppression hearing, and I think [Fitzgerald is] hearing

you say maybe he’s waiving that by entering a plea of guilty,

and     that’s     not        the    case.”            S.S.A.      33    (emphasis     added).

Especially given that the record contains no previous suggestion

that Fitzgerald would somehow reserve the right to appeal that

ruling, it is somewhat unclear whether “that’s not the case”

referred to a belief by Fitzgerald that he retained the right to

appeal     or    to     the    district        court’s        possible     suggestion       that

Fitzgerald       was     waiving      the      right     to   appeal      that    issue.      No


      3   Nor does the record even reflect any statements by
either side prior to the prior colloquy suggesting that
Fitzgerald’s guilty plea would be conditional.


                                                  11
clarification immediately followed that would have alerted the

prosecutor that defense counsel was taking the position that

Fitzgerald was retaining the right to appeal that ruling.

       The only clear statement concerning Fitzgerald’s right to

appeal       the    suppression         issue    came      two    pages     later      in    the

transcript, after defense counsel had already stated that he did

not    believe      any       further      discussion      of    appellate          rights   was

needed.       The court stated that Fitzgerald retained the right to

“[c]hallenge any sentence that I end up imposing” and “certainly

retain[ed the] ability to appeal any decision the Court has made

with      regard    to    a     motion     to   suppress        tangible       or   derivative

evidence      to    the    extent       that    the    Court     ruled    against      [him].”

S.S.A.       35.         Immediately        following      that     statement,         defense

counsel raised a separate issue regarding appellate rights, and

the subject of the right to appeal the denial of the motion to

suppress was never revisited.

       As we have noted, the government concedes that for there to

be    a     valid    conditional         plea,       the   record       must    reflect      its

affirmative         assent      to   the    conditional         plea.      The      government

contends that this affirmative assent came in the form of the

prosecutor’s response to a question asked by the district court

at    the    end    of    the    plea    colloquy.         The    court    had       asked   the

prosecutor if he believed Fitzgerald had been properly advised

during the plea colloquy, to which the prosecutor responded that

                                                12
he believed there needed to be a record made of the fact that

Fitzgerald        reviewed        and     rejected    a     plea     offer    from      the

government.         The judge then asked Fitzgerald several questions

about the plea offer and Fitzgerald answered them.                                 At that

point, the court asked the prosecutor, “Anything else?” and the

prosecutor answered, “No, Your Honor, that’s perfect.”                              S.S.A.

49.

       The government maintains that the “that’s perfect” comment

represented an acceptance by the prosecutor of the entire Rule

11 colloquy.            Since the colloquy included a statement by the

court      that    Fitzgerald      had    reserved    his    right     to    appeal     the

denial of his suppression motion, the government contends the

“that’s perfect” comment constituted an assent to Fitzgerald’s

reservation of rights.              We disagree. 4         First of all, it is far

from    clear     that    the   “that’s      perfect”      comment    did    not    simply

refer      to     the    record     the    court     had    just     finished       making

concerning        Fitzgerald’s          knowledge    and    consideration          of   the

government’s plea offer.                 And even if the prosecutor intended

       4  We note that the fact that the government is taking
the position on appeal that the “that’s perfect” comment
satisfied the government-consent requirement is not a substitute
for its actual assent during the district court proceedings.
Rule 11(a)(2) makes clear that the government’s consent is a
precondition for a valid conditional guilty plea.    See Fed. R.
Crim. P. 11(a)(2) (“With the consent of the court and the
government, a defendant may enter a conditional plea of guilty .
. . .”).    In the absence of assent by the government in the
district court, no conditional guilty plea was validly entered.


                                             13
his   “that’s     perfect”       comment       to    refer       to    the    entire      plea

colloquy, we have already explained that nothing in the record

affirmatively     indicates        the      specificity         contemplated       by     Rule

11(a)(2).         Accordingly,         it      would       require      inference         upon

inference   for    us    even     to   conclude        that     the    “that’s     perfect”

comment demonstrated the prosecutor’s agreement with the judge’s

earlier statement concerning Fitzgerald’s right to appeal the

suppression ruling.        Suffice it to say that the “that’s perfect”

statement is far from the “unequivocal government acquiescence”

to a conditional guilty plea that Rule 11(a)(2) requires.                                   We

therefore      conclude         that     the        mandatory         government-consent

requirement     was     never    satisfied,         and    the    plea       on   which    the

judgment appealed from is based is not a valid conditional plea.

See Bundy, 392 F.3d at 645.

                                             B.

      Insofar as Fitzgerald did not enter a valid conditional

guilty plea, the question of whether the district court erred in

denying his suppression motion is not properly before us.                                  See

id. (“Absent a valid conditional guilty plea, we will dismiss a

defendant’s appeal from an adverse pretrial ruling on a non-

jurisdictional issue.”).               Nevertheless, we still must consider

whether “an unconditional plea has been entered or” whether “no

valid   plea    has     been    entered.”           Id.    at    649    (alteration        and

internal quotation marks omitted).                        We may treat Fitzgerald’s

                                             14
plea as unconditional only if he “entered such a plea, including

a waiver of appeal rights, ‘knowingly, intelligently, and with

sufficient awareness of the relevant circumstances and likely

consequences.’”         Id. (quoting United States v. Ruiz, 536 U.S.

622, 629 (2002)).

     The parties agree that if Fitzgerald’s plea was not a valid

conditional guilty plea, we cannot treat it as a knowing and

voluntary    unconditional      plea    in    light    of   the   facts    that     the

district    court   apparently      understood        Fitzgerald’s   plea      to    be

conditioned on his right to appeal the denial of his suppression

motion, and that Fitzgerald entered his plea in reliance on the

assurance that he had preserved that issue.                   We agree with the

parties     on   this    point.        See    Pierre,       120   F.3d    at    1156.

Accordingly, since we have neither a valid conditional plea nor

a valid unconditional plea, we must vacate the judgment.                            See

Bundy,    392    F.3d   at   649.      On    remand,    Fitzgerald       can   decide

whether to plead guilty again or whether to proceed to trial.

See id. at 650.

                                       III.




                                        15
     For   the    foregoing   reasons,   we   vacate   the    judgment   of

conviction and remand for further proceedings consistent with

this opinion. 5

                                                   VACATED AND REMANDED




     5    We express no opinion           regarding     the    merits    of
Fitzgerald’s substantive arguments.


                                   16
