United States of America v. Yousif Ibrahim Sherif

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4492
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
YOUSIF IBRAHIM SHERIF,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:08-cr-00360-CMH-1)
Submitted: May 11, 2010 Decided: June 9, 2010
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Stephen Jones, JONES, OTJEN, DAVIS & TEBOW, Enid, Oklahoma, for
Appellant. Dana J. Boente, United States Attorney, Gordon D.
Kromberg, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Yousif Sherif was indicted on one count of bulk cash
smuggling, 31 U.S.C. § 5332(a), one count of failing to file a
report of importation of currency and monetary instruments, 31
U.S.C. § 5324(c)(1), and one count of making a materially false
statement, 18 U.S.C. § 1001(a). Pursuant to what was presented
as a conditional plea agreement, Sherif pled guilty to the
§ 5324(c)(1) charge, and the government dismissed the remaining
counts. Sherif’s plea agreement purports to preserve his right
to appeal the district court’s denial of his pre-trial motions
to suppress and to disclose electronic surveillance. After
accepting the plea agreement, the district court sentenced
Sherif to one year of probation. Sherif now appeals both issues
preserved in his plea agreement.
In limited circumstances, a defendant may enter a
conditional guilty plea under Federal Rule of Criminal Procedure
11(a)(2) and preserve certain pretrial issues for appeal.
United States v. Bundy, 392 F.3d 641, 645 (4th Cir. 2004).
However, a conditional plea is not valid if it purports to
preserve for appeal an issue that is not case-dispositive. Id.
at 647. An issue is case-dispositive if (1) an appellate ruling
in the defendant's favor would require dismissal of the charges
or suppression of essential evidence, or (2) an appellate ruling
in the government's favor would require an affirmance of the

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judgment of conviction. Id. at 648. If a conditional plea is
invalid, we must vacate the judgment of conviction and remand
the case to the district court to allow the defendant to
determine whether to enter into a new plea agreement or proceed
to trial. Id. 649-50.
After the parties filed their appellate briefs, we
requested supplemental briefs on the issue of whether the
conditional plea in this case is proper in light of Bundy. In
his supplemental brief, Sherif argues that his guilty plea is
invalid because it preserves for appeal an issue that is not
case-dispositive –- the denial of his motion for disclosure of
electronic surveillance. However, in its supplemental brief,
the government argues that this issue is case-dispositive
because, if this court were to reverse the district court’s
denial of this motion, the government would dismiss the
remaining charge against Sherif rather than disclose any
electronic surveillance.
Regardless of the government’s intended litigation
strategy, a ruling in Sherif’s favor on the discovery motion
would not require dismissal. Rather, dismissal would be at the
government’s discretion. Therefore, it is not a case-
dispositive issue. For this reason, we must vacate the judgment
of conviction and remand this case to the district court to
allow Sherif to either enter a valid plea or proceed to trial.

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We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED

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