UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4618

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DWAYNE STINSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, District Judge. (1:17-cr-00211-LO-1)

Submitted: March 18, 2019 Decided: April 8, 2019

Before KEENAN, FLOYD, and HARRIS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Geremy C. Kamens, Federal Public Defender, Todd M. Richman, Assistant Federal Public Defender, Ann Mason Rigby, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Whitney Dougherty Russell, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Dwayne Stinson entered a conditional guilty plea to one count of sexual

exploitation of children, in violation of

(a)(e), 2256(2) (2012), and was

sentenced to 240 months in prison. Following the denial of two motions to suppress,

Stinson entered the conditional plea, preserving his right to challenge on appeal the

district court’s order denying the motions. The Government has filed a motion to vacate

and remand, asserting that the conditional guilty plea erroneously sought to preserve a

non-dispositive issue for appeal. The Government thus asserts that Stinson’s judgment of

conviction must be vacated and this matter remanded to the district court so Stinson can

decide whether to enter another guilty plea or proceed to trial. We agree with the

Government and grant the motion.

When a defendant pleads guilty, he “forgoes not only a fair trial, but also other

accompanying constitutional guarantees.” United States v. Ruiz,

(2002). Thus, a defendant who enters a valid unconditional plea waives all rights to

challenge an adverse pretrial ruling on a non-jurisdictional issue. See United States v.

Abramski,

(4th Cir. 2013). In fact, “direct review of an adverse ruling

on a pretrial motion is available only if the defendant expressly preserves that right by

entering a conditional guilty plea pursuant to [Fed. R. Crim. P.] 11(a)(2).” United States

v. Bundy,

(4th Cir. 2004) (internal quotation marks omitted).

To be valid, however, a conditional plea under Rule 11(a)(2) “must be offered in

writing[,]” “must specify the adverse pretrial rulings that the defendant seeks to

appeal[,]” and “Government consent and court approval[ ] are mandatory and cannot be

2 avoided.”

The writing requirement “ensure[s] careful attention to any conditional

plea and . . . make[s] 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.”

(internal quotation marks omitted). The government consent requirement

“ensures 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.”

(internal

quotation marks and brackets omitted). 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.”

(internal quotation marks omitted).

In addition to the foregoing, a conditional guilty plea may only preserve appellate

issues that are case-determinative.

. An issue so qualifies when an appellate

“ruling in the defendant’s favor would require dismissal of the charges or suppression of

essential evidence, or . . . a ruling in the Government’s favor would require affirming the

conviction.”

. “In short, there should be no trial after the specified issues are

resolved by the court of appeals.”

Notably, a conditional plea’s attempt to preserve a

non-dispositive issue will invalidate the entire plea, regardless of whether it also

appropriately preserves case dispositive issues for appeal.

.

It its motion to vacate, the Government asserts that the parties erroneously

included a Miranda 1 challenge within the scope of Stinson’s conditional guilty plea.

1 Miranda v. Arizona,

(1966).

3 More specifically, the Government asserts that because Stinson’s Miranda issue is non-

dispositive, we may not entertain either issue Stinson’s seeks to raise on this appeal and,

thus, Stinson must either abandon the Miranda issue or have his guilty plea vacated.

Stinson opposes the Government’s motion, asserting that: (1) this court’s precedent does

not bar him from raising the Miranda issue on appeal; (2) even if the district court erred

when it accepted the conditional plea, “the Government invited the error and is now

barred from seeking relief for it[;]” and (3) because the Government did not object in the

district court, the dispositive issue is subject to review for plain error, which Stinson

argues the Government cannot establish.

There is no dispute that Stinson’s conditional plea satisfies Rule 11’s in writing,

specificity, Government consent, and court approval requirements. Thus, the sole issue

before us is whether Stinson’s Miranda issue is case dispositive, so as to allow us to

entertain this appeal. We conclude that the Miranda issue is not case dispositive.

As the Government correctly points out, Stinson’s inculpatory statements made

during the search warrant’s execution was not the only evidence establishing Stinson’s

guilt. To the contrary, the record establishes that significant physical evidence of

Stinson’s guilt was seized during the warrant’s execution, and Stinson made other

admissions during a previous law enforcement interview. Thus, even if we were to

determine that the district court erred when it refused to suppress the warrant interview

statements, “[a] favorable ruling on this issue will not guarantee dismissal of [the charge

against Stinson.]” Bundy,

. Instead, Stinson would have to choose on

remand whether to enter another guilty plea or proceed to trial to defend against the

4 Government’s remaining evidence. See

; cf. Fed. R. Crim. P. 11(a)(2) (“A

defendant who prevails on appeal may then withdraw the plea.”). “Either way, the

district court will have to render another adjudication, which may well give rise to yet

another appeal.” Bundy,

. This is exactly the type of appellate issue

about which we expressed concern when we observed that allowing a non-dispositive

issue to be the subject of a conditional plea would waste judicial resources. See

Because the admissibility of the non-Mirandized statements is non-dispositive, it cannot

be the subject of a valid conditional guilty plea. 2

Based on the foregoing, we grant the Government’s motion to vacate, vacate

Stinson’s judgment of conviction, and remand this matter to the district court for further

proceedings consistent with this opinion. 3 We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

VACATED AND REMANDED

2 Because we are indisputably foreclosed from reviewing a conditional guilty plea if the plea seeks to raise a non-dispositive issue, it is immaterial whether the Government consented to the conditional guilty plea or objected below. See

(sua sponte raising issue regarding the invalidity of a conditional guilty plea and determining that a conditional guilty plea cannot be knowing and voluntary if it purports to include issues unreviewable by the appellate court). 3 We express no opinion as to the merits of Stinson’s challenges to the district court’s pretrial rulings.

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