United States v. Adebisi Adigun

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1888
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A DEBISI T. A DIGUN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:10-cr-40033—G. Patrick Murphy, Judge.
A RGUED JANUARY 6, 2012—D ECIDED D ECEMBER 28, 2012
Before M ANION and W ILLIAMS, Circuit Judges, and
C ASTILLO, District Judge. Œ
W ILLIAMS, Circuit Judge. Adebisi T. Adigun was charged
with three drug offenses after officers seized crack and
cocaine powder from him on two separate occasions.
On the day of his scheduled trial, Adigun pled guilty in
Œ
The Honorable Ruben Castillo, United States District Court
for the Northern District of Illinois, sitting by designation.
2 No. 11-1888
open court and was later sentenced to 151 months’ im-
prisonment. On appeal, Adigun argues that the district
court erred by failing to suppress contraband seized
from his car and by incorrectly calculating a ten-year
mandatory minimum sentence. We find that Adigun
waived any objection to the suppression ruling by
entering an unconditional guilty plea before the district
court. And though the minimum sentence should have
been reduced pursuant to the Fair Sentencing Act of 2010
(FSA), we conclude that the error was harmless in
Adigun’s case. Therefore, we affirm the district court’s
sentence and dismiss the remainder of the appeal.
I. BACKGROUND
Two arrests, separated by less than a month, led to
Adigun’s indictment in the current case. On March 16,
2010, Adigun was seated in the driver’s seat of a van
that was parked, with its engine running, in a church
parking lot. A Jeep Grand Cherokee, driven by Amy
Oakley, pulled into the parking lot next to the van. Officer
Michael Haynes said he saw the Jeep run a stop sign
and proceeded to investigate. Haynes first questioned
Oakley and then walked over to the van. He asked
Adigun whether an open can on the car’s console con-
tained beer. When Adigun said yes, Haynes told him
to empty the contents onto the ground. While he was
reaching for the beer can, Adigun dropped a plastic bag
in his other hand outside the passenger window. When
Haynes asked Adigun what he had thrown on the
No. 11-1888 3
ground, he responded, “Well, that’s my girlfriend’s. She
likes to smoke crack.” Haynes placed Adigun under arrest.
The next month, on April 7, 2010, Adigun was stopped
for driving a vehicle with expired license plates. He
had paid a friend to use the car and was driving with
his girlfriend, Jessica Marczewski, to Chicago from
his home in Herrin, Illinois. Officer Todd Zeigler ap-
proached the car to advise the occupants of the expired
plate. Zeigler said he saw beer bottles missing from a six-
pack and suspected Adigun and Marczewski might be
drunk. He asked Adigun to accompany him to his
patrol car for a driver’s license check. Officer Zeigler
claimed that in the patrol car, Adigun insisted that he
was sober and gave him permission to search for any
open alcohol containers in the car. Adigun disputes that
he ever gave consent for any search. A microphone
system routinely used to record traffic stops was not
activated or failed to function properly so there was
no recording of the alleged consent. When Zeigler
searched the car, he saw cocaine powder residue in a
plastic bag. A further search revealed crack cocaine
lodged beneath a booster seat and Adigun was arrested.
On August 3, 2010, Adigun was charged in a three-
count indictment with conspiracy to distribute and pos-
session with intent to distribute crack and powder
cocaine, aided and abetted by Marczewski. Marczewski
entered into a cooperating plea agreement with the gov-
ernment. Adigun moved to suppress evidence seized in
the March 16 and April 7 arrests. As to the March 16
seizure, the district court denied the motion. With
4 No. 11-1888
respect to the April 7 seizure, the district court initially
granted the motion after hearing testimony from Officer
Zeigler and Adigun. The court reasoned that without
evidence beyond Zeigler’s contested account, the gov-
ernment could not meet its burden of proof that
Adigun consented to the search over the defendant’s
testimony that he had not.
A week before the October 19, 2010 trial was set to
begin, Adigun filed a supplemental motion to suppress
Marczewski’s testimony as fruit of the April 7 seizure.
In responding to the supplemental motion, the govern-
ment asked the court to reconsider its prior suppres-
sion ruling under a new theory: that Adigun had no
standing to challenge the search because he was driving
a borrowed car beyond the scope of permission and
had not established a reasonable expectation of privacy.
On October 15, the district court agreed and vacated
its suppression ruling on the April 7 seizure, permitting
all of the evidence to come in against Adigun. The
district judge also found that Adigun lacked credibility
due to inconsistent testimony between the first and
second evidentiary hearings.
The morning of trial, Adigun asked for a continuance
and a new lawyer. He said that after the court reversed
its ruling on the April 7 seizure, disagreements had
arisen with his counsel about how to proceed. Adigun
believed his counsel was not prepared for trial given
the recent setback. He said: “I just don’t think that my
counsel is ready at this time, and . . . his perspective
No. 11-1888 5
on appeal to the output of the trial, I don’t think, is in
my best interest.”
Adigun’s attorney advised the court that he was pre-
pared to try the case whether or not evidence from the
April 7 seizure was suppressed. But he noted that he
had already recommended that Adigun plead guilty
both before and after the district court vacated the sup-
pression ruling. When the April 7 seizure had been sup-
pressed, the government had been willing to recommend
a sentence of 24 to 30 months. Although he left the
final decision up to his client and would vigorously try
the case, Adigun’s counsel said he had strongly recom-
mended accepting the initial offer.
The judge denied the continuance and the request for
new counsel, advising Adigun that his attorney had a
reputation for excellent work. He told the defendant, “the
jury is here, and I’m going to give you plenty of time,
a little more time, but I’m not going to inconvenience
those jurors. . . . So make up your mind one way or the
other. The court has no interest in how you decide it,
but you’re going to have to make a decision. I’ve got
my stopwatch on.” After speaking with his sister during
a 15-minute recess, Adigun agreed to plead guilty.
The district court described the charges in the indict-
ment, verified Adigun’s competence and education
level, advised Adigun of his right to proceed to trial and
the rights he would be waiving by pleading guilty. The
judge stated, “I’m also told by my clerk that this is an
open plea.” Adigun’s counsel replied, “It is an open plea.
The government has agreed to a few concessions.” One
6 No. 11-1888
such concession was that “the Fair Sentencing Act
will apply with respect to the Guidelines in this matter,
the 18-to-1 ratio. Obviously, it doesn’t affect any manda-
tory minimums.” After the court described the factual
basis for the charges in the indictment, Adigun
admitted that the facts as described were true and
entered a guilty plea.
At sentencing, the district court sustained several
of Adigun’s objections to the PSR and adopted his cal-
culation of drug quantity over that offered by the proba-
tion officer. An 18-to-1 crack-powder ratio under the
FSA yielded a Guideline range of 151 to 188 months’
imprisonment. The court then set a mandatory mini-
mum sentence of 120 months. Adigun sought a below-
Guideline sentence at the 120-month minimum while
the government requested a within-Guideline sentence
of 151 months. The district court weighed sentencing
factors under 18 U.S.C. § 3553(a) and rejected a down-
ward variance because the crime was serious and
Adigun was “dishonest,” “manipulative,” and “very
dangerous.” For these reasons, the court determined,
“I think this is a Guideline sentence” and adopted the
government’s recommendation of 151 months’ impris-
onment. Adigun brought this appeal.
II. ANALYSIS
A. Adigun’s Unconditional Guilty Plea
Adigun asks this court to review the suppression
rulings made by the district court before his guilty plea.
No. 11-1888 7
But there is an immediate and obvious barrier to his
appeal. An unconditional guilty plea precludes chal-
lenge to the denial of a motion to suppress because the
“guilty plea constitutes a waiver of non-jurisdictional
defects occurring prior to the plea. . . . This waiver
includes Fourth Amendment claims.” United States v.
Cain, 155 F.3d 840, 842 (7th Cir. 1998) (citations omitted);
see also United States v. Herrera, 265 F.3d 349, 351
(6th Cir. 2001) (“It is elemental that a guilty pleading
defendant may not appeal an adverse pre-plea ruling on
a suppression of evidence motion unless he has
preserved the right to do so by entering a conditional
plea of guilty . . . .”). Adigun has argued that his guilty
plea should be construed as conditional, preserving the
right to appeal the district court’s suppression rulings.
The Federal Rules of Criminal Procedure permit a
defendant to enter a conditional plea of guilty under
specific circumstances: The district court and the gov-
ernment must both consent and the defendant must
“reserv[e] in writing the right to have an appellate
court review an adverse determination of a specified
pretrial motion.” Fed. R. Crim. P. 11(a)(2). Here,
Adigun pled guilty in open court and there is no
written plea agreement identifying the pretrial rulings
preserved for appeal.
In United States v. Yasak, we permitted a conditional plea
without a written agreement on the basis of representa-
tions in the plea transcript. 884 F.2d 996, 1000 (7th Cir.
1989). But here we must reach the opposite conclu-
sion—that Adigun’s plea was unconditional. Defense
8 No. 11-1888
counsel stated that Adigun was entering an “open plea”
and there is no indication in the record of any issues
preserved for appeal. Even if the full colloquy were
ambiguous, we could not infer a conditional plea from
the record. “When there is no special written reservation
of the right to appeal, the parties’ statements regarding
the plea are ambiguous, and the government declines
to assent to an appeal, there is not a valid conditional
plea under Fed. R. Crim. P. 11(a)(2).” Id. at 999.
Rule 11(a)(2) requires “unequivocal government acquies-
cence.” Id. (internal quotation marks and citation omit-
ted). Here, unlike Yasak, there is no evidence of any pros-
ecutors’ agreement to a conditional plea, nor assent
to this appeal, nor waiver of the writing requirement.
There is also no indication that the district court agreed
that any pretrial issues be preserved for appeal, an inde-
pendent requirement under Rule 11(a)(2). Nor does the
record indicate which rulings would be preserved, a
particular problem since Adigun filed five different
suppression motions related to the March 16 and April 7
seizures. At oral argument, defense counsel ultimately
conceded that Adigun’s guilty plea was unconditional.
Adigun further argues that, however the plea is charac-
terized, we can infer from the record that he only
pled guilty because he believed he was preserving a right
to appeal the suppression rulings. Adigun cites United
States v. Carrasco, 786 F.2d 1452, 1455 (9th Cir. 1986),
overruled on separate grounds in United States v. Jacobo
Castillo, 496 F.3d 947 (9th Cir. 2007) (en banc), for the
proposition that the purported ambiguity regarding
appellate review should permit him to “plead anew.” We
No. 11-1888 9
cannot agree. In Carrasco, it was uncontested that
the government had initially offered the defendant a
conditional plea agreement which it later withdrew
after choosing not to dismiss a separate count in the
indictment. The defendant filed notice with the court
that she would still enter a conditional guilty plea to
the first count. The Ninth Circuit concluded that the
plea was, in fact, unconditional because there was no
clear consent from the government or district court to the
modified, partial agreement. Nevertheless, the Carrasco
court chose to vacate the plea entirely because it
was impossible to determine on that record whether
the defendant knew she was waiving her ability to
appeal her pretrial issues, even though she was aware
that the government had withdrawn its initial offer of a
conditional plea agreement.
The facts in this case are plainly distinct. There is no
evidence whatsoever that the government ever offered
Adigun a conditional plea agreement. To the contrary, the
record suggests that Adigun was consciously waiving
his rights, quite unlike Carrasco. Adigun appears to
have disagreed with his counsel over the importance
of preserving a right to appeal the suppression rulings.
He told the district court that his counsel’s “perspective
on appeal to the output of the trial, I don’t think, is in
my best interest.” But, he later pled guilty despite this
10 No. 11-1888
disagreement, after both the district court and his coun-
sel advised him he could freely proceed to trial.1
We have previously held that the trial court is not
obligated to inform defendants of the consequences of
an unconditional plea on a potential appeal. United
States v. Fisher, 772 F.2d 371, 375 (7th Cir. 1985). Neverthe-
1
Adigun has not directly challenged his counsel’s effective-
ness in advising him to enter an unconditional guilty plea.
But we note that it would likely be difficult to establish
attorney incompetence on this record. “A conditional plea is
not just the defendant’s choice.” United States v. Alvarez-Quiroga,
901 F.2d 1433, 1437 (7th Cir. 1990). Here, as in Alvarez-Quiroga,
“[t]here was no reason for the government or the court to
accept a conditional plea offer even if one had been made.”
Id. The government had already prepared for trial and the
likelihood of conviction would have been quite high after the
district court admitted physical evidence from the arrests.
Adigun could have independently decided to proceed to trial
and challenge the suppression rulings if he were convicted.
But he chose not to. Furthermore, the underlying merits of
Adigun’s Fourth Amendment objections are far from obvi-
ous. The district court vacated the suppression of the
April 7 evidence in part because it found Adigun untrust-
worthy and no longer credited his account of the arrest. Appel-
late courts typically defer to such credibility judgments by a
trial court. And Adigun’s argument that the March 16 stop
was a non-Mirandized detention and interrogation is tenuous
at best. Advising a client to plead guilty under such circum-
stances is well “within the range of competence demanded
of attorneys in criminal cases.” Id. (citation omitted).
No. 11-1888 11
less, many lay defendants do not recognize the effect a
plea can have on appellate review of alleged constitu-
tional errors. For this reason, many district courts
explicitly inform defendants that they are waiving the
right to appeal pretrial rulings. Though we conclude
that Adigun voluntarily entered an unconditional plea,
it would have been preferable for the district court to
have expressly advised him of the full extent of the
waiver. That would have eliminated further controversy
on the matter.
B. Right to Challenge Adverse Suppression Rulings
Was Waived
Because Adigun’s plea was unconditional, the gov-
ernment asserts that this court has no subject-matter
jurisdiction to review the district court’s suppression
rulings. This was our conclusion in United States v.
Combs, 657 F.3d 565, 571 (7th Cir. 2011) (per curiam), cert.
denied, ___ U.S. ___, 132 S. Ct. 2373 (2012). Adigun cites
contrary authority from United States v. Robinson, where
we stated that “[e]ven when a defendant pleads guilty
unconditionally or fails to object at sentencing, the court
may review non-jurisdictional errors for plain error.”
20 F.3d 270, 273 (7th Cir. 1994). Adigun asks us to
reject Combs and apply plain error review to the district
court’s suppression rulings pursuant to Robinson.
Robinson is something of an outlier within this circuit.
Beyond Combs, other cases have rejected appellate juris-
diction over pretrial rulings following an unconditional
12 No. 11-1888
guilty plea. See United States v. Kingcade, 562 F.3d 794,
798 (7th Cir. 2009); United States v. Elizalde-Adame, 262
F.3d 637, 640 (7th Cir. 2001); United States v. Cain, 155
F.3d 840, 843 (7th Cir. 1998); see also United States v.
Gaertner, 583 F.2d 308, 311 (7th Cir. 1978) (finding defen-
dant’s “speedy trial claim . . . not open for our review
after pleas of guilty”).2 Even so, some of our sister
circuits have diverged on this issue and exercised juris-
diction in cases involving unconditional pleas (or
plea agreements with appellate waivers). See United
States v. De Vaughn, 694 F.3d 1141, 1155-58 (10th Cir.
2012); United States v. Cheney, 571 F.3d 764, 769 (8th Cir.
2009); United States v. Jacobo Castillo, 496 F.3d 947, 957
(9th Cir. 2007) (en banc); United States v. Garcia, 339 F.3d
116, 118 (2d Cir. 2003). Adigun urges us to resolve the
precedent in his favor and review the district court’s
suppression rulings for plain error. But we do not
believe that any of these cases supports Adigun’s posi-
tion. We think the tension in precedent both within
and outside of our circuit arises, in part, from varying
language used to describe the doctrines of waiver, for-
feiture, and subject-matter jurisdiction.
Though waiver and forfeiture are related, the terms
have sometimes been used interchangeably, which can
lead to confusion. The difference is that “forfeiture is the
failure to make the timely assertion of a right, [whereas]
2
But see United States v. Dvorak, 115 F.3d 1339, 1346 (7th
Cir. 1997) (relying on Robinson to apply plain error review
to upward sentencing departure).
No. 11-1888 13
waiver is the intentional relinquishment or abandon-
ment of a known right.” United States v. Olano, 507 U.S.
725, 733 (1993) (internal quotation marks and citation
omitted). So forfeiture is characterized by a negligent
or accidental omission while waiver involves a party’s
intentional (and often strategic) choice not to invoke a
right. Despite the differences, the Supreme Court has
acknowledged that the two terms have been conflated in
its own case law and by other courts. See id.; see also
Freytag v. C.I.R., 501 U.S. 868, 894 n.2 (1991) (Scalia, J.,
concurring) (observing that waiver and forfeiture “are
really not the same, although our cases have so often
used them interchangeably that it may be too late to
introduce precision”); see also United States v. Richardson,
238 F.3d 837, 841 (7th Cir. 2001) (describing dual use of
the term “waiver”).
Though the terms can be confused, the procedural
effects of forfeiture and waiver are very different. In
cases of forfeiture, Rule 52(b) of the Federal Rules of
Criminal Procedure permits “plain error” to be “consid-
ered even though it was not brought to the court’s atten-
tion.” But Rule 52(b) does not apply to waivers because
a waiving party has already made a conscious choice not
to invoke the right, thereby removing the issue from
controversy. See Olano, 507 U.S. at 733 (“waiver . . .
extinguish[es] an ‘error’ under Rule 52(b)”); United States
v. Harris, 230 F.3d 1054, 1058-59 (7th Cir. 2000) (“[W]e
cannot review waived issues at all because a valid
waiver leaves no error for us to correct on appeal.”).
14 No. 11-1888
We note that Robinson cited Rule 52(b) when
concluding that plain error review applies “[e]ven when
a defendant pleads guilty unconditionally or fails to object
at sentencing . . . .” 20 F.3d at 273 (emphasis added).
So Robinson employed the word “waiver” to mean
forfeiture (under the more precise terminology). See also
id. (characterizing waiver as “fail[ure] to raise a sen-
tencing challenge before the sentencing court”).
An unconditional guilty plea is not ordinarily con-
sidered a forfeiture. It is a knowing, voluntary relinquish-
ment of the defendant’s right to go to trial and contest
the factual basis of an indictment. In other words, the
unconditional plea is a true waiver. An opposing party
can “waive waiver” if it fails to assert the preclusive
effect of the waiver before the appellate court. See
Combs, 657 F.3d at 569 (discussing this principle); United
States v. Doe, 239 F.3d 473, 474-75 (2d Cir. 2001). But
in Robinson, it does not appear that the government
asserted on appeal the preclusive effect of the
defendant’s unconditional plea. Therefore, the court
treated the issue as forfeited and reviewed the merits
under the plain error standard used for the defendant’s
forfeited sentencing objections.
The critical difference in Robinson’s analysis is that
the court exercised jurisdiction under those circum-
stances, whereas Combs declined to do so. Combs con-
cluded that even when the government fails to assert
the waiver effect of a defendant’s unconditional plea,
the appellate court has an independent obligation to
reject the appeal because it no longer has subject-matter
No. 11-1888 15
jurisdiction. 657 F.3d at 571. No party can waive or
forfeit a lack of subject-matter jurisdiction, “which we
must enforce even if everyone else has ignored it.” United
States v. Smith, 438 F.3d 796, 799 (7th Cir. 2006). Combs
held that an unconditional guilty plea resolves the issue
of factual culpability, relying on Tollett v. Henderson,
411 U.S. 258, 267 (1973) (“When a criminal defendant
has solemnly admitted in open court that he is in
fact guilty of the offense with which he is charged, he
may not thereafter raise independent claims relating to
the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea.”). After an uncondi-
tional plea, Combs reasoned, the court has no jurisdic-
tion over pre-plea claims because there is no longer a
case or controversy under Article III of the Constitution.
As noted above, other circuits have disagreed with us
on this question. They treat an unconditional plea as
a procedural waiver, which can in turn be waived or
forfeited by the government, and interpret Tollett as
addressing the preclusive effect of a guilty plea rather
than subject-matter jurisdiction. See De Vaughn, 694 F.3d
at 1155-58 (declining to follow Combs); Jacobo Castillo, 496
F.3d at 955-56. But even if we felt it necessary to revisit
our precedent as Adigun urges, we do not believe this
case presents a proper occasion to do so. Whether the
bar is jurisdictional or procedural, the government has
invoked it by asserting the preclusive effect of Adigun’s
unconditional plea. The government did not waive or
forfeit the issue as it did in Robinson, Jacobo Castillo, and
De Vaughn. No case in any circuit permits review when
a defendant’s waiver has been asserted by the govern-
16 No. 11-1888
ment. So there is little need to resolve any tension in
precedent here. We therefore conclude that we cannot
review Adigun’s Fourth Amendment claims.
C. The Error in Adigun’s Mandatory Minimum Sen-
tence Was Harmless
Adigun objects to the district court setting a ten-year
mandatory minimum sentence based on the quantity
of crack cocaine he possessed and distributed. The
district court arrived at the minimum sentence by
applying then-controlling precedent from United States v.
Fisher, 635 F.3d 336, 340 (7th Cir. 2011), a decision that
has since been reversed, Dorsey v. United States, ___ U.S.
___, 132 S. Ct. 2321 (2012). Although Adigun committed
his offenses (in part) before passage of the FSA, Dorsey
now confirms that the lower mandatory minimums
apply to all defendants sentenced after August 3, 2010.
Id. at 2336. Under Dorsey, the district court’s application
of a ten-year mandatory minimum was error and
Adigun’s minimum sentence should have been five years.
The government asserts, however, that any error as to
the minimum sentence is harmless given the reasons
the district court gave for the sentence. We agree. An
error is harmless if it “did not affect the district court’s
selection of the sentence imposed.” Williams v. United
States, 503 U.S. 193, 203 (1992); United States v. Anderson,
517 F.3d 953, 965 (7th Cir. 2008). Here, the trial court
weighed the seriousness of Adigun’s crime and rejected
his motion for a downward variance after finding
Adigun to be “dishonest,” “manipulative,” and “very
No. 11-1888 17
dangerous.” The court expressly concluded, “this is a
Guideline sentence,” and selected 151 months from the
correctly calculated range of 151 to 188 months. Adigun
does not object to the calculation of his Guideline range,
which incorporated the FSA’s 18-to-1 crack-powder
ratio. And here, the entire Guideline range was above
the erroneously calculated ten-year minimum.
We are not saying that an error setting a mandatory
minimum will automatically be harmless if a district
court imposes a sentence above that minimum. But on
this record, we conclude that the error had no effect on
the sentence the district court selected.
III. CONCLUSION
Because we find that the error in Adigun’s minimum
sentence was harmless and that we cannot review his
other claims, we A FFIRM the district court’s sentence
and D ISMISS the remainder of this appeal.
M ANION, Circuit Judge, concurring. I concur with the
result of the case and the court’s reasoning in II.A and II.C.
However, I differ somewhat from the court’s analysis
of United States v. Robinson, 20 F.3d 270 (7th Cir. 1994), and
18 No. 11-1888
United States v. Combs, 657 F.3d 565 (7th Cir. 2011) (per
curiam), in Part II.B. As I see it, Combs and Robinson
are compatible and share a common rule.
In Combs, the defendant pleaded guilty, but later
objected to the submission of evidence with a motion to
suppress. 657 F.3d at 566. Typically, issues about a
motion to suppress would be deemed “waived” by an
unconditional guilty plea, but the government did not
make this argument on appeal. See id. at 568-69. Nonethe-
less, we ruled that the guilty plea “removes the issue of
guilt from this case, rendering moot any pre-plea chal-
lenges that do not implicate the validity of the admis-
sion itself.” Id. at 571 (quoting United States v. Jacobo
Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc)
(Callahan, J., dissenting)). Because the defendant’s pre-
plea claims were moot, the claims no longer included
a case or controversy, and we therefore lacked Article III
jurisdiction over those claims. Id.Therefore, Combs stated our rule on the extent of the
waiver that results from an unconditional guilty plea: If
a defendant enters an unconditional guilty plea, the
defendant waives—and we therefore lack jurisdiction
over—claims that: (1) occurred pre-plea; (2) do not chal-
lenge the validity of the plea; and (3) do not challenge
the jurisdiction of the courts (which parties are not
allowed to waive regardless of a plea). See id.; see also
Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States
v. Phillips, 645 F.3d 859, 862-63 (7th Cir. 2011).
Although Robinson did not explicitly apply the rule
discussed in Combs, the issues reviewed on appeal in
Robinson are nonetheless consistent with Combs. The
No. 11-1888 19
defendant in Robinson entered an unconditional guilty
plea, but made a variety of arguments on appeal. 20 F.3d
at 273-79. These arguments can be categorized as
(1) challenges to the defendant’s sentence (Parts II, V, VI,
VII, VIII, and IX); (2) challenges to the validity of the
guilty plea (Parts III and IV); and (3) a challenge to the
jurisdiction of the federal court (Part X). Id. The first
category of challenges addressed the defendant’s sen-
tencing—which occurred after the plea had been en-
tered. Id. The second category of challenges attacked the
validity of the guilty plea—whether undesired counsel
forced the plea on the defendant and whether the govern-
ment breached its plea agreement. Id. at 275-76. Finally,
the third category challenged the jurisdiction of the
federal court to hear a case by a bank that allegedly
lacked federal insurance. Id. at 279. Under the rule
stated in Combs, we had jurisdiction over these claims.
Although the defendant’s guilty plea in Robinson had
not waived the issues on appeal, the defendant had not
raised many of these issues before the district court. Id.
at 273. We determined that we could review these
issues for plain error under Fed. R. Crim. P. 52(b). Id.In this case, Adebisi T. Adigun’s challenges clearly fall
under Combs, and not Robinson. Adigun’s claim chal-
lenged the evidence supporting his guilt. This issue
occurred pre-plea, and does not attack the validity of
the plea or the jurisdiction of the federal court. We there-
fore lack jurisdiction over this claim because Adigun’s
unconditional guilty plea waived it.
12-28-12