United States v. Robert LeCraft

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4041
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT LEON LECRAFT,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:10-cr-00021-FL-1)
Submitted: October 9, 2013 Decided: October 24, 2013
Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Nardine Mary Guirguis, GUIRGUIS LAW, PA, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, Yvonne V. Watford-McKinney, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Leon LeCraft pled guilty to possession of a firearm
by a convicted felon. See 18 U.S.C. § 922(g). Pursuant to Rule
11(a)(2) of the Federal Rules of Criminal Procedure, LeCraft
expressly conditioned the plea on his right to appeal the
district court’s order denying his pretrial suppression motion.
See J.A. 270. The court thereafter sentenced LeCraft to a 180-
month imprisonment term. In this appeal, LeCraft argues that the
court erred by denying his suppression motion and his pre-
sentencing motion to substitute counsel. Further, he argues that
his ability to pursue the appeal is prejudicially affected by
the unavailability of his Rule 11 plea hearing transcript. 1 For
the reasons set forth below, we vacate the judgment and remand
for further proceedings.
Rule 59(b) of the Federal Rules of Criminal Procedure
authorizes referral of a pretrial suppression motion to a
magistrate judge for a recommendation, and it instructs that a
party who fails to object to such a recommendation waives the
1
Post-sentencing, the parties discovered that a transcript
of the guilty plea hearing is unavailable. In March 2013, we
issued an order remanding the case to the district court for the
limited purpose of settling and approving the record as provided
in Federal Rule of Appellate Procedure 10(c). See J.A. 252-53.
After conducting its review, the court adopted in its entirety
the government’s statement concerning the Rule 11 hearing and
adopted LeCraft’s statement in part. See J.A. 264-269.
2
right to review. See, e.g., United States v. Midgette, 478 F.3d
616, 621-22 (4th Cir. 2007) (holding that the defendant waived
appellate review of the denial of his suppression motion by
failing to file proper objections to the magistrate’s report). 2
As we explained in Midgette, “[t]he requirement to make
objections preserves the district court’s role as the primary
supervisor of magistrate judges, and conserves judicial
resources by training the attention of both the district court
and the court of appeals upon only those issues that remain in
dispute after the magistrate judge has made findings and
recommendations.” Id. at 621 (citation omitted).
The district court referred LeCraft’s pretrial suppression
motion to a magistrate judge for an evidentiary hearing. The
magistrate judge conducted the hearing and filed a Memorandum
and Recommendation (“M&R”) in which he recommended denying the
motion. See J.A. 25-137 (hearing transcript), 138-152 (M&R). The
magistrate judge expressly noted in the M&R that either party
had 14 days to file written objections and warned them of the
consequences of failing to do so, see J.A. 151, and the district
clerk of court – citing Rule 59(b) - attached a similar notice
to the M&R, see J.A. 152. Both notices expressly informed the
2
The waiver doctrine also arises from our cases interpreting
28 U.S.C. § 636(b). See Midgette, 478 F.3d at 621.
3
parties that a failure to object to the M&R could affect their
ability to appeal a judgment based on the magistrate’s findings
and recommendation. LeCraft, who was represented by counsel,
failed to file written objections to the M&R within the allotted
time period. See J.A. 153. Finding no clear error with the
recommendations of the magistrate judge, the court adopted the
M&R and denied the motion. See J.A. 153-166.
LeCraft thereafter conditionally pled guilty, reserving the
right to appeal the order denying the suppression motion.
Unfortunately, LeCraft’s purported reservation of the right to
appeal the suppression order is illusory because by the time he
entered the conditional plea agreement he had already waived the
right to seek appellate review of that order by failing to file
objections to the M&R.
We faced a circumstance identical to the one presented here
in United States v. Cagle, 314 Fed. Appx. 617 (4th Cir. 2009).
Like LeCraft, Cagle failed to file objections to the
magistrate’s recommendation that his suppression motion be
denied, but after the district court adopted the recommendation,
Cagle entered a conditional guilty plea and challenged the
suppression order on appeal. Applying the waiver rule noted
above, we held that Cagle waived his right to appeal the
suppression order, and we affirmed the conviction and sentence.
See also United States v. Buckbee, 3 Fed. Appx. 563 (7th Cir.
4
2001) (same). Although not binding, our unpublished disposition
in Cagle suggests that we should decline to consider LeCraft’s
challenge to the suppression order and proceed to consider the
other issues of the appeal.
However, in United States v. Bundy, 392 F.3d 641, 649-50
(4th Cir. 2004), we held that when a defendant enters a
conditional plea based on the mistaken belief that he is
preserving an issue for review that, in fact, is not reviewable
by means of a conditional plea, no valid plea has been entered,
and the proper course is to vacate the judgment and remand the
case to the district court to allow the defendant to either
plead guilty again or proceed to trial. Bundy is not exactly on
point because although the defendant there attempted to preserve
an issue that was improper for conditional plea purposes, he
could nonetheless eventually appeal the issue if he chose on
remand to proceed to trial. Here, LeCraft has already waived the
right to appeal the denial of his pretrial suppression motion by
failing to file objections to the M&R, and he cannot resurrect
his right to seek appellate review of the pretrial suppression
order by proceeding to trial. See United States v. Flores-Duran,
2013 WL 3286248 (4th Cir. July 1, 2013) (holding that the
defendant who was convicted after trial waived the right to
5
appeal the denial of his pretrial suppression motion by failing
to object to the magistrate’s recommendation). 3
Notwithstanding this minor difference, we have carefully
considered this matter, and we find that the best course under
the circumstances presented is to follow Bundy and vacate the
judgment. LeCraft’s plea is specifically premised on his, the
government’s, and the district court’s mistaken belief
concerning his appellate rights, and it cannot be treated as a
knowing and voluntary unconditional plea. See Bundy, 392 F.3d at
649-50. We believe that a remand for further proceedings is
especially appropriate because of the unavailability of, and the
appellate dispute concerning, the Rule 11 transcript. On remand,
LeCraft should be permitted to enter another guilty plea (which
is not conditioned on his right to appeal the pretrial
suppression order) or proceed to trial. 4
VACATED AND REMANDED
3
We note, however, that LeCraft may be able to renew the
suppression issue if he proceeds to trial. See United States v.
Raddatz, 447 U.S. 667, 678 n.6 (1980).
4
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.
6