US v. Ronald L. Phillips

Filing 920081020

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4632

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. RONALD L. PHILLIPS, Defendant ­ Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Frederick P. Stamp, Jr., Senior District Judge. (3:06-cr-00047-FPS)

Submitted:

September 17, 2008

Decided:

October 20, 2008

Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Kevin D. Mills, MILLS & WAGNER, PLLC, Martinsburg, West Virginia, for Appellant. Sharon L. Potter, United States Attorney, Wheeling, West Virginia; Thomas O. Mucklow, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Ronald L. Phillips was indicted on one count of attempting by use of the internet to persuade or entice a minor to engage in sexual activity commerce a (Count for 1) and one count of 18 of traveling in in

interstate conduct 2423(b). Count 1.

the

purpose 2). See

engaging U.S.C.

sexual

with

minor

(Count

§§ 2422(b),

Pursuant to a plea agreement, Phillips pled guilty to The district court thereafter sentenced him to a term Phillips now appeals the district

of 120 months imprisonment.

court's denial of his motion seeking specific performance of a prior plea agreement that he contends is binding on the

government.

For the reasons set forth below, we vacate the

judgment of conviction and remand for further proceedings. Generally, a defendant who pleads guilty waives all

nonjurisdictional defects in the proceedings conducted prior to entry of the plea. (4th Cir. 2004). may enter a United States v. Bundy, 392 F.3d 641, 644

However, in limited circumstances, a defendant guilty plea under Federal Rule of

conditional

Criminal Procedure 11(a)(2) and preserve certain pretrial issues for appeal. Interpreting Rule 11(a)(2), we held in Bundy that 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 only if (1) an appellate ruling in the defendant's favor would require on remand either a dismissal of 2

the charges or suppression of essential evidence, and (2) an appellate ruling in the government's favor would require an

affirmance of the judgment of conviction. After requested the parties filed briefs their on the

Id. at 648. appellate issue of briefs, whether we the

supplemental

purported conditional plea in this case is proper in light of Bundy. that the In their supplemental briefs, the parties acknowledge issue presented by this appeal ­ i.e., Phillips'

entitlement to specific performance of the prior plea agreement ­ is not case-dispositive. appeal is not properly For that reason, we hold that this before us. The parties further

acknowledge, correctly in our view, that because Phillips only entered into the plea agreement and pled guilty based on the express understanding that he would be able to pursue this

appeal, the appropriate course under Bundy is for us to vacate the judgment of conviction and remand this case to the district court for further we proceedings. vacate the See judgment id. of at 649-50. and

Accordingly,

conviction

remand this case to the district court for further proceedings consistent with this opinion. 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 3