US v. Torrick Rodger
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to file supplemental brief(s) [999320278-2] Originating case number: 4:11-cr-00087-FL-1. Copies to all parties and the district court/agency. [999499097]. [13-4878]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4878
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TORRICK JOHNTRELLE RODGERS, a/k/a Trelle,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:11-cr-00087-FL-1)
Argued:
December 11, 2014
Before MOTZ and
Circuit Judge.
THACKER,
Decided:
Circuit
Judges,
December 23, 2014
and
DAVIS,
Senior
Affirmed by unpublished per curiam opinion.
ARGUED: Elisa Cyre Salmon, SALMON & GILMORE, LLP, Lillington,
North Carolina, for Appellant. Joshua L. Rogers, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Torrick
agreement,
Johntrelle
to
several
Rodgers
counts
pled
guilty,
involving
possession of cocaine and cocaine base.
the
without
a
plea
distribution
and
The district court then
sentenced him to incarceration for 211 months.
Rodgers appeals,
contending that his plea was not knowing and voluntary, and that
the district court erred in denying his motion to suppress. 1
For
the reasons that follow, we affirm.
I.
On December 3, 2010, the Government sought and was granted
a search warrant for Rodgers’ home in Farmville, North Carolina.
The
application
surveillance,
pulls
was
and
conducted
based
included
at
on
two
years
evidence
Rodgers’
home
on
of
investigation
obtained
from
November
24,
two
and
trash
2010
and
December 3, 2010.
While executing the warrant on the evening of December 3,
law enforcement officers seized from the home cocaine, cocaine
1
Because we conclude that Rodgers did not enter a
conditional guilty plea, we do not review the district court’s
denial of his motion to suppress.
See Fed. R. Crim. P.
11(a)(2); United States v. Abramski, 706 F.3d 307, 314 (4th
Cir.), cert. granted, 134 S. Ct. 421 (2013), and aff’d, 2014 WL
2676779 (June 16, 2014) (“[A]bsent a valid conditional guilty
plea, we will dismiss a defendant’s appeal from an adverse
pretrial ruling on a non-jurisdictional issue.”) (citation
omitted).
2
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base, marijuana, and a variety of drug paraphernalia.
On August
10, 2011, Rodgers was indicted for one count of conspiracy to
distribute and possess with intent to distribute cocaine and
cocaine base, in violation of 21 U.S.C. § 846; two counts of
distribution
of
cocaine
§ 841(a)(1);
and
one
base,
count
in
of
violation
possession
of
21
with
U.S.C.
intent
to
distribute cocaine and cocaine base, in violation of 21 U.S.C.
§ 841(a)(1).
Rodgers
moved
to
suppress
evidence
obtained
search of his house on December 3, 2010.
during
the
He argued that the
Government produced insufficient evidence of probable cause for
the search warrant.
Rodgers contended that the evidence from
trash pulls conducted on November 24 and December 3 should not
be
considered
constituted
an
in
determining
unlawful
probable
intrusion
into
cause
the
because
curtilage
they
of
the
home.
A federal magistrate judge held a hearing on the motion.
At that hearing, the Government conceded that evidence from the
November 24 trash pull should be excluded from consideration.
But the Government contended that the December 3 trash pull had
been
from
established
The
the
probable
magistrate
motion.
curb,
judge
and
cause
that
the
without
agreed
and
warrant
the
so
application
November
recommended
24
still
evidence.
denying
the
The magistrate found that the December 3 trash pull had
3
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been
from
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the
curb,
and
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held
that,
even
excluding
evidence
obtained in the November 24 trash pull, probable cause supported
the
warrant
magistrate
application.
judge’s
The
findings
and
district
court
adopted
recommendation,
and
the
denied
Rodgers’ motion to suppress.
On
April
agreement,
18,
to
all
2012,
Rodgers
four
counts
pled
in
guilty,
the
without
indictment.
a
plea
After
conducting a Rule 11 plea colloquy, the district court accepted
the plea, determining that it was knowing and voluntary.
A probation officer prepared a presentence report, to which
Rodgers objected.
Following several amendments to the report
and several continuances, the district court ultimately held the
sentencing hearing on November 7, 2013.
The court determined
that the Guidelines range was 262 to 327 months on counts one
and four, and that counts two and three carried a statutory
maximum
months
of
in
counseling.
240
months.
prison,
and
The
five
court
years’
sentenced
supervision
Rodgers
and
to
211
addiction
Rodgers timely noted an appeal. 2
2
Rodgers has also filed a pro se motion for leave to submit
a supplemental brief pursuant to Anders v. California, 386 U.S.
738 (1967). We deny the motion. Because Rodgers is represented
by counsel who has filed a merits brief on his behalf, not a
brief pursuant to Anders, he is not entitled to file a
supplemental brief. See United States v. Penniegraft, 641 F.3d
566, 569 n.1 (4th Cir. 2011).
4
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II.
Rodgers asserts that his unconditional guilty plea was not
knowing
and
voluntary
because
he
entered
his
plea
under
the
mistaken assumption that he could pursue an appeal on the denial
of his suppression motion.
assistance
of
counsel
mistaken assumption.
or
He does not claim that ineffective
any
Government
promises
caused
his
Rather, he asserts that the district court
did so by erroneously advising him that he had not waived any
appeal rights.
Because Rodgers challenges the validity of his plea for the
first time on appeal, we review for plain error.
v. Martinez, 277 F.3d 517, 524-25 (4th Cir. 2002).
Rodgers must show:
United States
Accordingly,
(1) that an error occurred; (2) that was
plain; (3) that affected his substantial rights; and (4) that
affected
the
fairness,
judicial proceedings.
(1993).
integrity,
or
public
reputation
of
See United States v. Olano, 507 U.S. 725
To prove effect on his substantial rights, Rodgers must
demonstrate “a reasonable probability that, but for the error,
he would not have entered the plea.”
United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004).
A.
When a defendant pleads guilty, he “forgoes not only a fair
trial, but also other accompanying constitutional guarantees.”
United
States
v.
Ruiz,
536
U.S.
5
622,
628
(2002)
(citation
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omitted).
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A defendant who enters a valid unconditional plea
waives all rights to challenge an adverse pretrial ruling on a
non-jurisdictional issue.
Abramski, 706 F.3d at 314.
Thus,
“direct review of an adverse ruling on a pretrial motion is only
available if the defendant expressly preserves that right by
entering a conditional guilty plea pursuant to Rule 11(a)(2)” of
the
Federal
Rules
of
Criminal
Procedure.
United
States
v.
Bundy, 392 F.3d 641, 645 (4th Cir. 2004) (quotation and citation
omitted).
A
valid
conditional
plea
under
Rule
11(a)(2)
“must
be
offered in writing,” “must specify the adverse pretrial rulings
that the defendant seeks to appeal,” and “Government consent and
court
Both
approval[]
parties
plea.
are
agree
mandatory
that
and
Rodgers
did
cannot
not
be
enter
avoided.”
a
Id.
conditional
As Rodgers concedes, his plea was not in writing, he did
not orally specify the suppression motion that he now seeks to
appeal,
and
neither
the
Government
nor
the
district
court
expressly approved the reservation of that particular appellate
right.
“The alternatives to a conditional plea being entered are
either that an unconditional plea has been entered or that no
[valid] plea has been entered.”
Id. at 649 (citation omitted).
Thus, because Rodgers’ plea was -- by its own terms and by
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Rodgers’ concession -- not conditional, the remaining inquiry is
whether his plea was unconditional or invalid.
B.
For a guilty plea to be valid, the Constitution imposes
“the
minimum
requirement
that
[the]
plea
be
expression of [the defendant’s] own choice.”
States, 397 U.S. 742, 748 (1970).
the
voluntary
Brady v. United
An unconditional plea must be
entered “knowingly, intelligently, and with sufficient awareness
of the relevant circumstances and likely consequences.”
392
F.3d
at
649
(citation
omitted).
“In
Bundy,
evaluating
the
constitutional validity of a guilty plea, courts look to the
totality
of
defendant’s
the
circumstances
solemn
truthfulness.”
surrounding
declaration
of
[it],
guilt
the
presumption
a
granting
of
United States v. Moussaoui, 591 F.3d 263, 278
(4th Cir. 2010) (citation and internal quotations omitted).
Rodgers’
principal
assertion
is
that
his
plea
was
not
knowing and voluntary because statements made by the district
court
led
him
to
believe
that
he
had
retained
a
right
appellate review of the denial of his suppression motion.
to
In so
asserting, Rodgers relies primarily on the following statement
made by the court during the Rule 11 hearing:
“[T]here being no
plea agreement but a determination to plead guilty, you haven’t
waived any of your appeal rights, but you’re going to not have a
trial if I accept your plea.”
We find no plain error in this
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it was made by the district court after Rodgers had
pled guilty.
relating
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Because Rodgers had not waived his appeal rights
to
jurisdictional
or
sentencing
issues
by
pleading
guilty, the court’s statement was accurate.
Further,
Rule
11
“does
not
require
a
district
court
to
inform a defendant that, by pleading guilty, he is waiving his
right
to
appeal
violations.”
any
antecedent
rulings
or
United States v. White, 366 F.3d 291, 299 n.6 (4th
Cir. 2004) (alterations and citation omitted).
voluntary
constitutional
plea
“does
not
require
complete
A knowing and
knowledge
of
the
relevant circumstances, but permits a court to accept a guilty
plea,
with
its
accompanying
waiver
of
various
constitutional
rights, despite various forms of misapprehension under which a
defendant might labor.”
Ruiz, 536 U.S. at 630.
To the extent
that Rodgers labored under a misapprehension about preservation
of
appellate
review
of
his
suppression
motion,
the
district
court’s statements at best confirmed, in Rodgers’ mind, those
misapprehensions
--
they
did
not
give
rise
to
Rodgers’
misconceptions. 3
3
Rodgers also relies on statements made by the court and by
his counsel at sentencing to argue that he was unaware that he
had waived his right to appeal the denial of his suppression
motion when entering his guilty plea. Appellant Br. 17-18. But
these statements were made months after Rodgers had already
entered his unconditional guilty plea.
Thus, the statements
could not have motivated him in entering the plea. Moreover, if
(Continued)
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C.
Finally, Rodgers contends that, under Bundy, a court will
not
treat
defendant
an
unconditional
mistakenly
enters
guilty
it
plea
as
believing
voluntary
he
appellate rights, when in fact he has not.
has
if
a
preserved
Appellant Br. 15.
Bundy does not stand for this broad proposition.
In that case, a defendant entered a conditional guilty plea
that comported fully with the requirements of Rule 11(a)(2).
However,
we
held
that
only
case-dispositive
preserved in a conditional plea.
issues
could
be
Only two of the three issues
preserved in Bundy’s conditional plea were case-dispositive.
We
concluded
that
the
non-case-dispositive
issue
could
be
separated
from
the
two
ones,
and
case-dispositive
not
that
the
presence of one non-case-dispositive issue rendered the entire
conditional plea invalid.
further
held
that
Bundy, 392 F.3d at 649.
although
Bundy’s
conditional
plea
Thus, we
was
not
valid, it could not be treated as an unconditional plea either.
Thus,
we
reasoned
that
since
the
district
court
“accepted
Bundy’s plea as a conditional plea[,] [b]ased on this record, we
[could]
not
treat
unconditional plea.”
this
plea
as
a
knowing
and
voluntary
Id. at 649 (emphasis in original).
Bundy
the court did plainly err by misadvising Rodgers -- and we do
not find that it did -- Rodgers has not shown, and cannot show,
that he would not have entered the plea but for such advice.
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therefore establishes only that if a district court accepts a
defendant’s conditional plea, and that plea is later determined
not to be valid, we will not treat the plea as unconditional.
That is not what happened here.
plea
was
not
conditional:
It
Rodgers concedes that his
did
not
comport
with
the
requirements of Rule 11(a)(2), he did not state that his plea
was conditional at any point during his plea colloquy, and he
did not expressly condition his oral plea on the preservation of
appellate review of any issues.
Because the plea accepted by
the district court in this case was unconditional, affirming
that unconditional plea does not undermine the bargain Rodgers
struck with the Government -- indeed, there is no bargain to
undermine here, because there was no plea agreement. 4
4
Rodgers also relies on three unpublished cases to argue
that a defendant who pleads guilty mistakenly believing he may
challenge a pretrial motion on appeal does not enter a voluntary
unconditional plea.
See United States v. LeCraft, 544 Fed.
App’x 185, 2013 WL 5754379 (4th Cir. 2013); United States v.
LeSane, 498 Fed. App’x 363, 2012 WL 5519992 (4th Cir. 2012); and
United States v. Ochoa, 353 Fed. App’x 390, 2009 WL 4049127
(11th Cir. 2009).
Of course, none of these cases has
precedential value.
See United States v. Hood, 628 F.3d 669,
672 (4th Cir. 2010). Moreover, in each of them, unlike the case
at hand, the defendant overtly conditioned his plea on the
preservation of a particular issue for appeal.
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IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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