United States of America v. Kenneth Bell

*The Honorab le Judge Ann Aldrich, United States District Judge for
the Northern District of Ohio, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0414P (6th Cir.)
File Name: 03a0414p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH BELL,
Defendant-Appellant.
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No. 02-1329
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.*
2 United States v. Bell No. 02-1329
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COUNSEL

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No. 02-1329 United States v. Bell 3
ON BRIEF: James W. McGinnis, Detroit, Michigan, for
Appellant. Patricia G. Gaedeke, ASSISTANT UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellee.
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OPINION
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KENNEDY, Circuit Judge. Defendant Kenneth Bell, who
pleaded guilty to being a felon knowingly in possession of a
firearm in violation of 18 U.S.C. § 922(g), appeals the district
court’s denial of a pre-plea motion to suppress evidence. For
the reasons explained below, 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
suppression motion.
I. Background
A federal grand jury indicted defendant Bell on one count
of being a felon knowingly in possession of a firearm in
violation of 18 U.S.C. § 922(g). Defendant filed a motion to
suppress the firearm that police officers seized from
defendant’s vehicle during the course of a traffic stop. After
a two-day hearing, the district court denied defendant’s
motion to suppress, finding that the officers’ actions did not
violate the Fourth Amendment. Defendant subsequently
pleaded guilty pursuant to a written plea agreement.
Consistent with that agreement, the district court sentenced
defendant to twenty-seven months of imprisonment followed
by three years of supervised release.
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
appeal on the ground that defendant waived his right to appeal
the denial of his suppression motion when he failed to comply
with Federal Rule of Criminal Procedure 11(a)(2)–which
4 United States v. Bell No. 02-1329
1Our analysis relies on the 2001 version of the Federal Rules of
Criminal Procedure as that was the version that was in effect at the time
of the events underlying this app eal. W e note tha t the 2002 amendme nts
mostly reorganized Rule 11, except for a few substantive changes
inapp licable here.
specifies the sole method by which one may preserve such a
right. A motions panel of this Court directed the parties to
address this issue in their briefings on the merits.
II. Analysis
Federal Rule of Criminal Procedure 11(a)(2) provides:
With the approval of the court and the consent of the
government, a defendant may enter a conditional plea of
guilty or nolo contendere, reserving in writing the right,
on appeal from the judgment, to review the adverse
determination of any specified pretrial motion. A
defendant who prevails on appeal shall be allowed to
withdraw the plea.
(2001).1 This Circuit has held that a defendant who pleaded
guilty may not appeal an adverse ruling on a pre-plea motion
to suppress evidence “unless he has preserved the right to do
so by entering a conditional plea of guilty in compliance
with” Rule 11(a)(2). United States v. Herrera, 265 F.3d 349,
351 (6th Cir. 2001). We reasoned that “[c]onditional guilty
pleas . . . represent an exception to the general rule that a
guilty plea waives all non-jurisdictional defects in the pre-
plea proceedings.” Id. To preserve one’s right to appeal a
pre-plea motion under Rule 11(a)(2), there must be: 1) a
conditional guilty plea in writing; 2) that reserves the right to
appeal a specified pre-trial motion; and 3) that evidences the
government’s consent. See id. at 352.
Here, the written Rule 11 plea agreement into which
defendant entered with the government does not expressly
reserve defendant’s right to appeal the district court’s denial

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No. 02-1329 United States v. Bell 5
2Regarding the waiver of defendant’s right to appeal, the plea
agreement simply specifies that defendant “agrees not to appeal or
otherwise challenge in any proceeding the constitutionality or legality of
any part of the sentencing guidelines . . . [and] the accuracy of any factor
stipulated to in this agreement or the attached worksheets.” Following the
maxim of expressio unius est exclusio alterius, we could construe
defendant’s express waiver of only his right to appeal his sentence as an
implicit preservation of his right to appeal his pre-plea suppression
motion. However, Rule 11(a)(2) mandates that defendant not get the
benefit of such silence; rather, to preserve his right to appeal the pre-plea
suppression motio n, defendant must have expressly and affirmative ly
reserved that right. See United States v. Kirksey, 118 F.3d 1113, 1115
(6th Cir. 19 97) (Rule 11(a)(2) barred direct review of the district court’s
denial of defenda nt’s motion to suppress because defendant entered an
unconditional guilty plea whereby he explicitly waived his right to appeal
“any writs of habeas corpus concerning any matters pertaining to the
prosecution including all motions, defenses, probable cause
determinatio ns, and objections to the C ourt’s entry of judgment.”).
of the pre-plea suppression motion.2 Rather, defendant
contends that he reserved his right to appeal this motion in a
document entitled “Guilty Plea Questionnaire and Certificate
of Counsel,” which the district court had given defendant
before the plea hearing. A provision of that document, as
originally drafted, advised defendant that he would not be
able to appeal the district court’s denial of any pre-trial
motions on non-jurisdictional issues if he were to plead
guilty, unless he were specifically to reserve that right in the
plea agreement. However, defendant, in a hand-written note,
amended this provision to provide: “I will be able to appeal
from the judge’s denial of my pre-trial motion to suppress
evidence.” Additionally, defendant argues that both the
district court and the government consented to the guilty plea
questionnaire’s express reservation of defendant’s right to
appeal the suppression motion when the district court, with no
objection from the government, entered that document into
6 United States v. Bell No. 02-1329
3Defendant also argues that the district court and the government
affirmed defendant’s right to appeal the suppression motion when the
district court, with no o bjection from the governm ent, advised defendant
at sentencing that he had “a right to ap peal the sentence in this matter.”
However, on its face, this erroneous advisement pertains only to
defendant’s purp orted right to ap peal his sentence, no t to any right to
appeal the denial of the suppression motio n. In any event, even if the
misstatement were some how to refere nce d efendant’s allege d right to
appeal the suppression issue, neither that misstatement nor the
gove rnment’s acquiescence in it could reinstate or preserve such a right
if defend ant waived it via non-comp liance with Rule 11(a)(2). Herrera ,
265 F.3d at 351 (The district court’s misstatement that defendant had the
right to appeal a pre-trial suppression motion was insufficient to trump
defendant’s waiver of that right via non-compliance with Rule 11.);
United States v. Fleming, 239 F.3d 76 1, 764 (6th Cir. 2001) (B ecause the
district court lacked the power under Rule 11 to modify the plea
agreement once it had accepted it, the court’s advisement that the
defendant had a right to appeal could not restore that right where the
accepted plea agreem ent had waived it.).
the record at the plea hearing.3 Moreover, at the plea hearing,
defendant acknowledged that the record–in addition to the
plea agreement–contained the promises that secured his guilty
plea. On the other hand, both the guilty plea questionnaire
and the plea agreement provide that the plea agreement is the
only existing agreement between the government and
defendant. Furthermore, the plea agreement states that
defendant’s attempt to withdraw or challenge his guilty plea
is a repudiation of that agreement.
In short, defendant contends that he complied with Rule
11(a)(2) because the guilty plea questionnaire is a written
document that expressly reserves defendant’s right to appeal
the suppression motion and that evidences the government’s
consent. Even taking these assertions as true, however,
defendant nevertheless failed to satisfy a fundamental
requirement of Rule 11(a)(2) when he entered an
unconditional plea of guilty, not a conditional plea of guilty

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No. 02-1329 United States v. Bell 7
4We 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.
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.

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