           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2   United States v. Bell             No. 02-1329
        ELECTRONIC CITATION: 2003 FED App. 0414P (6th Cir.)
                    File Name: 03a0414p.06                                                  _________________
                                                                                                COUNSEL
UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________

 UNITED STATES OF AMERICA , X
            Plaintiff-Appellee, -
                                   -
                                   -  No. 02-1329
           v.                      -
                                    >
                                   ,
 KENNETH BELL,                     -
         Defendant-Appellant. -
                                  N
      Appeal from the United States District Court
     for the Eastern District of Michigan at Detroit.
  No. 01-80027—Bernard A. Friedman, District Judge.

                  Submitted: October 23, 2003

            Decided and Filed: November 21, 2003

    Before: KENNEDY and GIBBONS, Circuit Judges;
              ALDRICH, District Judge.*




    *
     The Honorab le Judge Ann Aldrich, United States District Judge for
the Northern District of O hio, sitting by designation.

                                  1
No. 02-1329                         United States v. Bell     3    4        United States v. Bell                             No. 02-1329

 ON BRIEF: James W. McGinnis, Detroit, Michigan, for               specifies the sole method by which one may preserve such a
Appellant. Patricia G. Gaedeke, ASSISTANT UNITED                   right. A motions panel of this Court directed the parties to
STATES ATTORNEY, Detroit, Michigan, for Appellee.                  address this issue in their briefings on the merits.
                    _________________                                                           II. Analysis
                        OPINION                                        Federal Rule of Criminal Procedure 11(a)(2) provides:
                    _________________
                                                                       With the approval of the court and the consent of the
   KENNEDY, Circuit Judge. Defendant Kenneth Bell, who                 government, a defendant may enter a conditional plea of
pleaded guilty to being a felon knowingly in possession of a           guilty or nolo contendere, reserving in writing the right,
firearm in violation of 18 U.S.C. § 922(g), appeals the district       on appeal from the judgment, to review the adverse
court’s denial of a pre-plea motion to suppress evidence. For          determination of any specified pretrial motion. A
the reasons explained below, we AFFIRM the judgment and                defendant who prevails on appeal shall be allowed to
defendant’s sentence on the ground that defendant failed to            withdraw the plea.
preserve his right to appeal the district court’s denial of his
suppression motion.                                                (2001).1 This Circuit has held that a defendant who pleaded
                                                                   guilty may not appeal an adverse ruling on a pre-plea motion
                       I. Background                               to suppress evidence “unless he has preserved the right to do
                                                                   so by entering a conditional plea of guilty in compliance
  A federal grand jury indicted defendant Bell on one count        with” Rule 11(a)(2). United States v. Herrera, 265 F.3d 349,
of being a felon knowingly in possession of a firearm in           351 (6th Cir. 2001). We reasoned that “[c]onditional guilty
violation of 18 U.S.C. § 922(g). Defendant filed a motion to       pleas . . . represent an exception to the general rule that a
suppress the firearm that police officers seized from              guilty plea waives all non-jurisdictional defects in the pre-
defendant’s vehicle during the course of a traffic stop. After     plea proceedings.” Id. To preserve one’s right to appeal a
a two-day hearing, the district court denied defendant’s           pre-plea motion under Rule 11(a)(2), there must be: 1) a
motion to suppress, finding that the officers’ actions did not     conditional guilty plea in writing; 2) that reserves the right to
violate the Fourth Amendment. Defendant subsequently               appeal a specified pre-trial motion; and 3) that evidences the
pleaded guilty pursuant to a written plea agreement.               government’s consent. See id. at 352.
Consistent with that agreement, the district court sentenced
defendant to twenty-seven months of imprisonment followed            Here, the written Rule 11 plea agreement into which
by three years of supervised release.                              defendant entered with the government does not expressly
                                                                   reserve defendant’s right to appeal the district court’s denial
  Defendant timely filed a notice of appeal challenging the
judgment and the district court’s order denying defendant’s
motion to suppress. The government moved to dismiss this                1
                                                                         Our analysis relies on the 2001 version of the Federal Rules of
appeal on the ground that defendant waived his right to appeal     Criminal Procedure as that was the version that was in effect at the time
the denial of his suppression motion when he failed to comply      of the events underlying this app eal. W e note tha t the 20 02 amendme nts
with Federal Rule of Criminal Procedure 11(a)(2)–which             mostly reorganized Rule 11, except for a few substantive changes
                                                                   inapp licable here.
No. 02-1329                                United States v. Bell           5    6       United States v. Bell                              No. 02-1329

of the pre-plea suppression motion.2 Rather, defendant                          the record at the plea hearing.3 Moreover, at the plea hearing,
contends that he reserved his right to appeal this motion in a                  defendant acknowledged that the record–in addition to the
document entitled “Guilty Plea Questionnaire and Certificate                    plea agreement–contained the promises that secured his guilty
of Counsel,” which the district court had given defendant                       plea. On the other hand, both the guilty plea questionnaire
before the plea hearing. A provision of that document, as                       and the plea agreement provide that the plea agreement is the
originally drafted, advised defendant that he would not be                      only existing agreement between the government and
able to appeal the district court’s denial of any pre-trial                     defendant. Furthermore, the plea agreement states that
motions on non-jurisdictional issues if he were to plead                        defendant’s attempt to withdraw or challenge his guilty plea
guilty, unless he were specifically to reserve that right in the                is a repudiation of that agreement.
plea agreement. However, defendant, in a hand-written note,
amended this provision to provide: “I will be able to appeal                      In short, defendant contends that he complied with Rule
from the judge’s denial of my pre-trial motion to suppress                      11(a)(2) because the guilty plea questionnaire is a written
evidence.” Additionally, defendant argues that both the                         document that expressly reserves defendant’s right to appeal
district court and the government consented to the guilty plea                  the suppression motion and that evidences the government’s
questionnaire’s express reservation of defendant’s right to                     consent. Even taking these assertions as true, however,
appeal the suppression motion when the district court, with no                  defendant nevertheless failed to satisfy a fundamental
objection from the government, entered that document into                       requirement of Rule 11(a)(2) when he entered an
                                                                                unconditional plea of guilty, not a conditional plea of guilty




    2                                                                               3
      Regarding the waiver of defendant’s right to appeal, the plea                   Defendant also argues that the district court and the government
agreement simply specifies that defendant “agrees not to appeal or              affirmed defendant’s right to appeal the suppression motion when the
otherwise challenge in any proceeding the constitutionality or legality of      district court, with no o bjec tion from the governm ent, advised defendant
any part of the sentencing guidelines . . . [and] the accuracy of any factor    at sentencing that he had “a right to ap peal the sentence in this matter.”
stipulated to in this agreement or the attached worksheets.” Following the      However, on its face, this erron eous advisement pertains only to
maxim of expressio unius est exclusio alterius, we could construe               defendant’s purp orted right to ap peal his sentence, no t to any right to
defendant’s express waiver of only his right to appeal his sentence as an       appeal the denial of the supp ression motio n. In any event, even if the
implicit preservation of his right to appeal his pre-plea suppression           misstatement were some how to refere nce d efendant’s allege d right to
motion. However, Rule 11(a)(2) mandates that defendant not get the              appeal the suppression issue, neither that misstatement nor the
benefit of such silence; rather, to preserve his right to appeal the pre-plea   gove rnment’s acquiescence in it could reinstate or preserve such a right
suppression motio n, defendant must have expressly and affirmative ly           if defend ant waived it via non-comp liance with Rule 11(a)(2). Herrera ,
reserved that right. See United States v. Kirksey, 118 F.3d 1113, 1115          265 F.3d at 351 (The district court’s misstatement that defendant had the
(6th Cir. 19 97) (Rule 11(a)(2) barred direct review of the district court’s    right to appeal a pre-trial suppression motion was insufficient to trump
denial of defenda nt’s motion to suppress because defendant entered an          defendant’s waiver of that right via non-compliance with Rule 11.);
unconditional guilty plea whereby he explicitly waived his right to appeal      United States v. Fleming, 239 F.3d 76 1, 764 (6th Cir. 2001) (B ecause the
“any writs of habeas corpus concerning any matters pertaining to the            district court lacked the power under Rule 11 to modify the plea
prosecution including all motions, defenses, probable cause                     agreement once it had accepted it, the court’s advisement that the
determinatio ns, and objections to the C ourt’s entry of judgment.”).           defendant had a right to appeal could not restore that right where the
                                                                                accepted plea agreem ent had waived it.).
No. 02-1329                          United States v. Bell      7

contingent upon an appeal of the suppression motion.4 See
United States v. Pickett, 941 F.2d 411, 416-17 (6th Cir. 1991)
(“[B]ecause a guilty plea bars any subsequent non-
jurisdictional attack on the conviction,” defendant’s “failure
to enter a conditional guilty plea prevents him from raising
his argument against his conviction upon appeal.”); United
States v. Bahhur, 200 F.3d 917, 923 (6th Cir. 2000) (“[A]
defendant forecloses all subsequent non-jurisdictional appeals
to his conviction by pleading guilty or nolo contendere”; thus,
“by failing to enter into a conditional plea under Rule
11(a)(2),” defendant waived his right to appeal the district
court’s denial of his pre-trial motion to dismiss.). Defendant
contends neither that he had entered a conditional plea of
guilty nor that he believed that he had entered such a plea.
   In sum, we AFFIRM the judgment and defendant’s
sentence on the ground that defendant failed to preserve his
right to appeal the district court’s denial of his pre-plea
suppression motion when he did not enter a conditional plea
of guilty, as Rule 11(a)(2) requires.




    4
     We hold only that defendant failed to satisfy Rule 11(a)(2)’s
requirement of entering a conditional guilty plea. We leave open
whether defendant satisfied the rule’s other requirements, such as
whether the written guilty plea questionnaire–rather than the plea
agreement–could provide the requisite documentation.
