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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-41018
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
JOSEPH MARKS WISE,
Defendant - Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
June 18, 1999
Before EMILIO M. GARZA, DeMOSS, and PARKER, Circuit Judges.
DeMOSS, Circuit Judge:
Defendant-appellant Joseph Marks Wise challenges his
conviction for possession of cocaine with intent to distribute.
Because Wise pleaded guilty and failed to reserve the right to
appeal the district court's pretrial rulings, we affirm Wise's
conviction.
I.
Pursuant to two separate search warrants, police in Beaumont,
Texas searched two adjoining apartments, numbers 13 and 14, at 1010
North Fifth Street. In Apt. 13, they encountered Wise as he

attempted to flush powdered cocaine down a toilet. Wise had keys
to Apt. 14 in his possession. In Apt. 14, police found 175 grams
of cocaine base and 89 grams of powdered cocaine. Apt. 14 also
contained some of Wise's personal effects -- a cordless phone,
shoes, pants, and some legal papers.
Wise was charged with possession of cocaine with intent to
distribute and possession of cocaine base with intent to
distribute. He moved to suppress the fruits of the searches of
both apartments. The district court suppressed the personal
effects but refused to suppress the drugs. Pursuant to a plea
agreement (which does not contain any express written reservation
of Wise's right to appeal), Wise then pleaded guilty to possession
of cocaine with intent to distribute in exchange for the
government's motion to dismiss the cocaine base count. He was
sentenced to 121 months of imprisonment, three years of supervised
release, and fined $15,000.
II.
A voluntary and unconditional guilty plea has the effect of
waiving all nonjurisdictional defects in the prior proceedings.
See, e.g., McMann v. Richardson, 397 U.S. 759, 766, 90 S. Ct. 1441,
1446 (1970); Busby v. Holman, 356 F.2d 75, 77 & n.3 (5th Cir. 1966)
(collecting cases). That waiver includes, in this case, Wise's
objection to the legality of the search of his apartment. When a
trial court denies a motion to suppress evidence and the defendant
subsequently enters an unconditional plea of guilty, the defendant
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has waived the right to raise further objection to that evidence.
See, e.g., McMann, 397 U.S. at 766, 90 S. Ct. at 1446; United
States v. Smallwood, 920 F.2d 1231, 1240 (5th Cir. 1991).
Conditional pleas may be permitted, and this is the usual
procedural avenue for preserving the defendant's objection to a
dispositive pretrial ruling and obviating the need for a full
trial. But conditions to a plea are not to be implied.
Conditional pleas must be made in writing, consented to by the
prosecution, and approved by the court. See Fed. R. Crim. P.
11(a)(2). Furthermore, the plea agreement must explicitly
designate particular issues intended to be preserved for appeal.
See United States v. Bell, 966 F.2d 914, 916 (5th Cir. 1992);
United States v. Hausman, 894 F.2d 686, 689 (5th Cir. 1990). The
requirements of consent by the government and approval by the court
mean that there is no absolute right to enter a conditional guilty
plea, and neither the prosecution nor the court has any duty to
advise a defendant of the availability of such a procedure. See,
e.g., Bell, 966 F.2d at 916; United States v. Daniel, 866 F.2d 749,
751 (5th Cir. 1989).
This Court has, in appropriate circumstances, relaxed the
technical conditional plea requirements of Rule 11(a)(2). Harmless
Rule 11 violations are expressly excused by the Rule, which
provides that "[a]ny variance from the procedures required by this
rule which does not affect substantial rights shall be
disregarded." Fed. R. Crim. P. 11(h). We can excuse variances
from Rule 11(a)(2) when the spirit of that rule has been fulfilled
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by a clear indication on the record of the defendant's intention to
plead conditionally, a clear indication on the record of the
defendant's intention to appeal particular pretrial rulings, and
the acquiescence of both the prosecution and the court. See, e.g.,
Bell, 966 F.2d at 916. Thus in United States v. Fernandez, 887
F.2d 564 (5th Cir. 1989) (summary calendar), we entertained an
appeal in a case in which the government conceded that the
defendant had actually reserved the right to appeal as part of the
plea agreement. The record did not reflect strict compliance with
Rule 11(a)(2), as the written conditional plea was not part of the
record, and the record did not suggest that the district court had
approved a conditional plea. Guided by Rule 11(h), we disregarded
these procedural defects and considered the merits of the appeal.
See Fernandez, 887 F.2d at 566 n.1.
Wise's situation is distinguishable from Fernandez. Wise does
not argue that the record is deficient in failing to reflect an
actual reservation of a right to appeal the district court's
suppression ruling, and the government does not concede that Wise's
plea was conditional. Moreover, the written plea agreement, which
is part of the appellate record, contains absolutely no mention of
an anticipated appeal, fails to specifically refer to the district
court's denial of Wise's motion to suppress evidence, and contains
no reservation of rights of any kind. At Wise's plea hearing, the
district judge orally reviewed each provision of the plea
agreement, and Wise and his lawyer both orally confirmed that the
written plea agreement "is the entire plea agreement which has been
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negotiated by and between the parties, and that no other promise
has been made or implied by or for either the defendant or the
government." Thus, based on the unambiguous appellate record
before us we conclude that Wise's guilty plea was unconditional.
If the record is ambiguous as to whether the defendant's plea was
conditional, we may question voluntariness of the plea, vacate the
conviction, and remand for repleading. See Bell, 966 F.2d at 916-
17. "But if the record contains no manifestation of a reservation
of appellate rights, the plea is presumptively unconditional, and
an appellate court may not reach the merits of the defendant's
appeal." Id. at 917.
III.
In sum, in the absence of any reservation of conditions, a
guilty plea constitutes a waiver of the right to challenge
nonjurisdictional pretrial rulings on appeal. We reiterate the
admonition in Bell that "the preferred practice is for the district
court to advise the defendant that by pleading guilty he waives his
right to appeal non-jurisdictional pretrial issues." 966 F.2d at
917 n.3. We must affirm this conviction, however, because the
record unambiguously demonstrates that Wise's plea agreement did
not reserve the right to contest the district court's suppression
ruling on appeal.
AFFIRMED.
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