                                    PRECEDENTIAL


     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                   No. 18-3268



        UNITED STATES OF AMERICA

                        v.

               WALTER PORTER,
                       Appellant



  On Appeal from the United States District Court
     for the Western District of Pennsylvania
           (D.C. No. 2-17-cr-00236-001)
   District Judge: Honorable David S. Cercone


             Argued on June 13, 2019

Before: HARDIMAN, PORTER, and COWEN, Circuit
                   Judges.


              (Filed: August 1, 2019)
Laura S. Irwin
Ira M. Karoll [Argued]
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
              Attorneys for Appellee

James J. Brink [Argued]
428 Forbes Avenue, Suite 555
Pittsburgh, PA 15219
              Attorney for Appellant


                 OPINION OF THE COURT


HARDIMAN, Circuit Judge.

        The law is well established that a defendant cannot
relitigate the denial of a motion to suppress evidence after he
enters a valid, unconditional guilty plea. Appellant Walter
Porter entered such a plea. But he asks us to overturn the
District Court’s order denying his motion to suppress because
he never intentionally relinquished (i.e., waived) his appellate
rights, and the Court commented on those rights at sentencing.
We hold that whether Porter waived his suppression claim is
immaterial, and that the Court’s statements did not expand
Porter’s appellate rights. We will affirm the District Court’s
judgment of conviction and sentence.

                               I

      This case began with a traffic stop in the borough of
Indiana, Pennsylvania. Police searched the stopped car and




                               2
found drugs hidden in a “Fix-A-Flat” can inside a duffel bag.
Porter was seated next to the bag and said it was his. The police
took Porter into custody, and the United States charged him
with possession with intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C).

       After his indictment, Porter moved to suppress the
cocaine base, arguing that the search and seizure violated his
Fourth Amendment rights. The District Court held an
evidentiary hearing, and the parties offered conflicting
testimony. The Court rejected Porter’s version of events, so it
denied the motion to suppress.

       Several weeks after the evidentiary hearing, Porter
entered an open guilty plea. In his colloquy with the District
Court, Porter acknowledged the accuracy of the Government’s
summary of the evidence. And he agreed no one had “offered
[him] anything to secure [his] plea of guilty.” Supp. App. 13.
The District Court found Porter’s plea to be intelligent,
knowing, voluntary, and supported by the facts. The plea
hearing concluded with no discussion of the District Court’s
denial of Porter’s motion to suppress. Nor did sentencing
memoranda submitted by both parties make any reference to
appellate issues, much less the suppression of evidence.

       Not until his sentencing hearing months later did Porter
allude to an appeal. “[T]o preserve the record,” Porter’s
counsel “respectfully took exception to the Court’s rulings”
from the suppression hearing. Supp. App. 25. And after the
District Court sentenced Porter to 84 months’ imprisonment—
a substantial downward variance from the Guidelines range of
151 to 188 months—the Court informed him of his appellate
rights. Besides explaining Porter’s right to an appellate
attorney and the 14-day filing deadline, the Court said, “[s]ir,




                               3
you have the right to appeal. I know there’s some issues that’s
[sic] an indication you want to appeal. You have that right. You
have the right to appeal from your conviction and sentence
imposed upon you.” Supp. App. 45. Porter filed this timely
appeal.

                               II

       The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291. And
although we have said that only “jurisdictional” defenses
survive a defendant’s unconditional plea of guilty, e.g.,
Washington v. Sobina, 475 F.3d 162, 165 (3d Cir. 2007) (per
curiam), the fact that Porter does not challenge the subject
matter jurisdiction of the District Court or this Court does not
resolve his case.

        Many courts, including the Supreme Court, “‘have more
than occasionally misused the term “jurisdictional”’ to refer to
nonjurisdictional prescriptions.” Fort Bend County v. Davis,
139 S. Ct. 1843, 1848 n.4 (2019) (quoting Scarborough v.
Principi, 541 U.S. 401, 413 (2004)). Our Court has been no
exception. While we have used the word “jurisdiction” in
precedents like Washington, it has not been to discuss “the
nature and limits of the judicial power of the United States.”
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)
(quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379,
382 (1884)). In truth, “calling a defense ‘jurisdictional’ [has
been] a conclusion” that the defense might prevail, “not an
explanation” why. United States v. Hedaithy, 392 F.3d 580, 588
n.9 (3d Cir. 2004) (quoting United States v. Panarella, 277 F.3d
678, 682 n.1 (3d Cir. 2002), abrogated on other grounds by
Skilling v. United States, 561 U.S. 358, 410 (2010)). We now
clarify that a claim need not attack subject matter jurisdiction




                               4
to survive an unconditional guilty plea. In doing so, we join
many of our sister courts. See, e.g., United States v. Rios-
Rivera, 913 F.3d 38, 42 (1st Cir. 2019), cert. denied, 139 S. Ct.
2647 (2019); United States v. De Vaughn, 694 F.3d 1141, 1152
(10th Cir. 2012); United States v. Jacobo Castillo, 496 F.3d
947, 955–56 (9th Cir. 2007) (en banc). And as we will explain,
whether a claim survives an unconditional guilty plea depends
on whether the claim is constitutionally relevant to the
defendant’s conviction.

                                III

       In this appeal, Porter seeks to relitigate the denial of his
motion to suppress by arguing that the search of his duffel bag
violated his Fourth Amendment rights. Precedent precludes
him from doing so, and his attempts to circumvent that
precedent are unavailing.

                                A

        Courts have long understood a guilty plea to be “a
confession of all the facts charged in the indictment, and also
of the evil intent imputed to the defendant.” Class v. United
States, 138 S. Ct. 798, 804 (2018) (quoting Commonwealth v.
Hinds, 101 Mass. 209, 210 (1869)). Inherent in this confession
is the defendant’s relinquishment of “not only a fair trial, but
also other accompanying constitutional guarantees.” Id. at 805
(quoting United States v. Ruiz, 536 U.S. 622, 628 (2002)). As
relevant here, an unconditional “valid guilty plea ‘results in the
defendant’s loss of any meaningful opportunity he might
otherwise have had to challenge the admissibility of evidence
obtained in violation of the Fourth Amendment.’” Id. (quoting
Haring v. Prosise, 462 U.S. 306, 320 (1983)). This rule is
founded on the “simpl[e] recogni[tion] that when a defendant




                                5
is convicted pursuant to his guilty plea rather than a trial, the
validity of that conviction cannot be affected by an alleged
Fourth Amendment violation because the conviction does not
rest in any way on evidence that may have been improperly
seized.” Haring, 462 U.S. at 321. Instead, the defendant who
pleads guilty “is convicted on his counseled admission in open
court that he committed the crime charged against him.”
McMann v. Richardson, 397 U.S. 759, 773 (1970). The basis
for Porter’s conviction is thus his solemn and unconditional
confession of guilt—not the constitutionality of the search that
discovered the cocaine base in his duffel bag.

        Porter first tries to skirt these formidable precedents by
arguing that he never “affirmatively waived” his appellate
rights, whether in a plea agreement or someplace else. Reply
Br. 3. But Porter’s loss of appellate rights “d[oes] not rest on
any principle of waiver,” Haring, 462 U.S. at 321, which unlike
forfeiture is “the ‘intentional relinquishment or abandonment
of a known right.’” United States v. Olano, 507 U.S. 725, 733
(1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
Rather, it rests on the “irrelevan[ce]” of a Fourth Amendment
violation “to the constitutional validity of [his] conviction.”
Haring, 462 U.S. at 321. This concept of constitutional
irrelevance dates to the “Brady trilogy”: Brady v. United States,
397 U.S. 742 (1970), McMann, 397 U.S. 759, and Parker v.
North Carolina, 397 U.S. 790 (1970). See generally 5 Wayne
R. LaFave et al., Criminal Procedure § 21.6(a) (4th ed. 1974 &
Nov. 2018 update); 1A Charles Alan Wright et al., Federal
Practice and Procedure: Criminal § 172 (4th ed. 2008 & Apr.
2019 update). “The Brady trilogy announced the general rule
that a guilty plea, intelligently and voluntarily made, bars the
later assertion of constitutional challenges to the pretrial
proceedings.” Lefkowitz v. Newsome, 420 U.S. 283, 288




                                6
(1975). For instance, a defendant who confesses a crime under
duress, but later voluntarily pleads guilty to the crime, cannot
use that unlawful confession to attack his conviction. See
McMann, 397 U.S. at 773. Nor can a defendant overcome a
valid plea just because the Supreme Court later held
unconstitutional one of the penalties he potentially faced for
his crime. See Brady, 397 U.S. at 746, 757.

        This does not mean that a valid guilty plea insulates a
conviction against all attacks. Unlike Porter’s unconditional
plea, the plea itself sometimes “is entered with the clear
understanding and expectation by the State, the defendant, and
the courts that it will not foreclose judicial review of the merits
of the alleged constitutional violations.” Lefkowitz, 420 U.S. at
290 (special state-law plea allowing evidentiary suppression
claim); accord United States v. Moskow, 588 F.2d 882, 884 (3d
Cir. 1978) (conditional federal plea also allowing suppression
claim). Other times the claim is relevant to the conviction’s
validity. The Supreme Court’s recent decision in Class defines
claims of this sort. They are defenses which, “‘judged on [their]
face’ based upon the existing record, would extinguish the
government’s power to ‘constitutionally prosecute’ the
defendant” if successful. Class, 138 S. Ct. at 806 (quoting
United States v. Broce, 488 U.S. 563, 575 (1989)). Or, to
borrow a “guiding principle” adopted by Judge Friendly,

       a defendant who has been convicted on a plea of
       guilty may challenge his conviction on any
       constitutional ground that, if asserted before
       trial, would forever preclude the state from
       obtaining a valid conviction against him,
       regardless of how much the state might endeavor
       to correct the defect. In other words, a plea of




                                7
       guilty may operate as a forfeiture of all defenses
       except those that, once raised, cannot be “cured”.

United States v. Curcio, 712 F.2d 1532, 1538–39 & n.10 (2d
Cir. 1983) (quoting Peter Westen, Away from Waiver: A
Rationale for the Forfeiture of Constitutional Rights in
Criminal Procedure, 75 Mich. L. Rev. 1214, 1226 (1977)).

        With this sweep of the doctrine in mind, Porter’s case is
clear. Whether Porter waived his rights is not the point. Porter’s
plea did not allow his evidentiary appeal. Nor would his
evidentiary appeal, if successful, “extinguish the
[G]overnment’s power to ‘constitutionally prosecute’ [him]”
on the “existing record.” Class, 138 S. Ct. at 806 (quoting
Broce, 488 U.S. at 575). Put differently, a claim that evidence
is inadmissible is one that may be raised and “cured” before
trial. Curcio, 712 F.2d at 1539 (quoting Westen, supra, at
1226). So Porter’s appeal is “irrelevant to the constitutional
validity of [his] conviction.” Haring, 462 U.S. at 321; accord
Class, 138 S. Ct. at 805.

                                B

        Porter also claims his sentencing hearing “created a
plausible and tangible ambiguity and seemingly expanded [his]
appellate rights.” Reply Br. 5 (quoting United States v.
Saferstein, 673 F.3d 237, 242 (3d Cir. 2012)). At the start of the
hearing, defense counsel “preserve[d] the record” on his
evidentiary objections. Supp. App. 25. Then, after imposing
sentence, the District Court said to Porter, “I know there’s some
issues that’s [sic] an indication you want to appeal. You have
that right.” Supp. App. 45.




                                8
       These comments do not entitle Porter to relitigate his
suppression motion. Porter’s argument conflates the District
Court’s statements after sentencing with assurances made
before the defendant’s guilty plea. Saferstein dealt only with
the latter. In that case, the district court’s plea colloquy
misstated the terms of Saferstein’s written appellate waiver.
The court said the waiver was “not intended to bar [Saferstein]
from raising constitutional claims,” though the waiver’s text
said otherwise. Saferstein, 673 F.3d at 241. Saferstein then
pleaded guilty and sought to raise constitutional claims on
appeal. We allowed him to do so, because given the district
court’s representations, we could not be sure Saferstein had
“knowingly and voluntarily waiv[ed] his appellate rights.” Id.
at 243; see also United States v. Avila, 733 F.3d 1258, 1260,
1263 (10th Cir. 2013) (allowing withdrawal of unconditional
guilty plea because the district court misinformed the
defendant about appellate rights before accepting plea).

       Unlike Saferstein’s plea colloquy, Porter’s offered no
assurances about any appellate rights, as Porter candidly
concedes. Reply Br. 4 n.2. Rather, the District Court advised
Porter that a plea of guilty would relinquish many
constitutional rights. Among other things, the Court explained
that once it accepted Porter’s plea, “at that moment you are no
longer presumed innocent. You are in the same shoes that you
would be in had you gone to trial and a jury found you guilty,
you are now convicted.” Supp. App. 6; see also United States
v. Siddons, 660 F.3d 699, 703 (3d Cir. 2011) (describing the
defendant’s “substantial burden” under Fed R. Crim. P.
11(d)(2) if he seeks to withdraw an accepted plea). Porter said
he understood, he pleaded guilty, and the District Court
accepted his plea.




                              9
        Just as the District Court warned, that moment
“represent[ed] a break in the chain of events which ha[d]
preceded it in the criminal process.” Tollett v. Henderson, 411
U.S. 258, 267 (1973). This break “render[ed] irrelevant—and
thereby     prevent[ed]     [Porter]    from     appealing—the
constitutionality of case-related [G]overnment conduct that
t[ook] place before the plea [was] entered.” Class, 138 S. Ct.
at 805. To hold differently would allow Porter to challenge his
admitted guilt because of alleged ambiguities about appellate
rights that arose at sentencing. Cf. Betterman v. Montana, 136
S. Ct. 1609, 1616 (2016) (“[F]actual disputes, if any there be,
at sentencing, do not go to the question of guilt; they are
geared, instead, to ascertaining the proper sentence within
boundaries set by statutory minimums and maximums.”). We
decline to “degrade the otherwise serious act of pleading guilty
into something akin to a move in a game of chess.” United
States v. Hyde, 520 U.S. 670, 677 (1997).

                        *      *      *

        In sum, Porter cannot challenge on appeal the denial of
his motion to suppress because his Fourth Amendment claims
are irrelevant to his judgment of conviction, which was entered
following a valid and unconditional guilty plea. We will affirm.




                              10
