US v. Jay Tharp

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:14-cr-00161-PWG-1 Copies to all parties and the district court/agency. [999876790].. [15-4465]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4465

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAY MAURICE THARPS,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:14cr-00161-PWG-1)

Submitted:

May 27, 2016

Before AGEE and
Circuit Judge.

THACKER,

Decided:

Circuit

Judges,

and

July 1, 2016

DAVIS,

Senior

Vacated and remanded by unpublished per curiam opinion.

Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore,
Maryland, for Appellant.
Rod J. Rosenstein, United States
Attorney, Jennifer R. Sykes, Thomas M. Sullivan, Assistant
United States Attorneys, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jay Maurice Tharps appeals from his convictions, following
his guilty pleas, to possession of a firearm and ammunition by a
felon,

possession

with

intent

to

distribute

cocaine

and

marijuana, and possession of a firearm in furtherance of a drug
trafficking crime.

On appeal, he argues that the district court

erroneously denied his motions to suppress and for disclosure of
an

informant’s

statement.

We

vacate

the

district

court’s

judgment and remand for further proceedings.
Generally, “when a defendant pleads guilty, he waives all
nonjurisdictional defects in the proceedings conducted prior to
entry of the plea, and thus has no nonjurisdictional ground upon
which

to

plea.”
2011)

attack

that

judgment

except

the

inadequacy

of

the

United States v. Smith, 640 F.3d 580, 591 (4th Cir.
(alteration

and

internal

quotation

marks

omitted).

However, a defendant may reserve his right to appeal pretrial
rulings

by

entering

a

conditional

guilty

plea.

Such

a

conditional guilty plea must be “[w]ith the consent of the court
and the government,” and a defendant must “reserv[e] in writing
the

right

to

have

an

appellate

court

review

determination of a specified pretrial motion.”
11(a)(2).

an

adverse

Fed. R. Crim. P.

Although “the writing requirement [may be] satisfied

when the reservation is so clearly shown on the record that
there is no doubt that a conditional plea was agreed to[,] . . .
2

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the second and third requirements under the Rule — Government
consent

and

avoided.”
14-4795,

court

approval

—

are

mandatory

and

cannot

be

United States v. Fitzgerald, ___ F.3d ___, ___, No.
2016

WL

1660147,

at

*3

(4th

Cir.

Apr.

27,

2016)

(internal quotation marks omitted).
In Fitzgerald, we held that the defendant had not entered a
valid

conditional

demonstrate

that

conditional plea.

guilty
the

plea

where

Government

Id. at *4-5.

the

record

affirmatively

failed

agreed

to

to

the

There, as here, the Government

stood silent while the district court informed the defendant
that he had reserved his right to appeal the court’s rulings on
the

preplea

Government’s

motions.
preplea

Id.
letter

at

*1-2.

provides

Additionally,
that

there

the

were

no

agreements or promises between the parties, and the Government
never

affirmatively

indicated

at

the

plea

colloquy

that

it

agreed that Tharps could appeal the district court’s preplea
rulings.

We therefore conclude “that the mandatory government-

consent requirement was never satisfied,” id. at *5, and, thus,
that Tharps did not enter a valid conditional plea.
Because Tharps did not enter a valid conditional plea, “we
still

must

consider

whether

an

unconditional

plea

entered or whether no valid plea has been entered.”

has

been

Id. at *6

(internal quotation marks omitted).

“We may treat [an invalid

conditional]

only

plea

as

unconditional
3

if

[the

defendant]

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such

a

plea,

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including

a

waiver

of

appeal

rights,

knowingly, intelligently, and with sufficient awareness of the
relevant circumstances and likely consequences.”

Id. (internal

quotation marks omitted).
We conclude Tharps did not enter a knowing and voluntary
unconditional plea.
Tharps

wished

to

Tharps’ counsel initially indicated that
plead

guilty

without

an

agreement

Tharps sought to preserve his right to appeal.
hearing,

counsel

emphasized

that

an

because

During the plea

appellate

waiver

conspicuously absent from the district court’s colloquy.

was
As in

Fitzgerald, “the district court apparently understood [Tharps’]
plea to be conditioned on his right to appeal the denial of his
suppression

[and

disclosure]

motion[s],

entered

plea

in

on

his

preserved that issue.”

reliance

the

and

assurance

that

[Tharps]

that

he

had

Id.

Accordingly, we vacate the district court’s judgment and
remand for further proceedings consistent with this opinion. ∗
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.
VACATED AND REMANDED

∗

We express no opinion on the merits of Tharps’ substantive
arguments.

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