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«No. 13-4878 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TORRICK JOHNTRELLE RODGERS, a/k/a Trelle, Defendant - Appellant. Appeal from the ...»

UNPUBLISHED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 Decided: December 23, 2014 Before MOTZ and THACKER, Circuit Judges, and DAVIS, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Torrick Johntrelle Rodgers pled guilty, without a plea agreement, to several counts involving the distribution and possession of cocaine and cocaine base. 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 was based on two years of investigation and surveillance, and included evidence obtained from two trash pulls conducted at Rodgers’ home on November 24, 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 base, marijuana, and a variety of drug paraphernalia. On August 10, 2011, Rodgers was indicted for one count of conspiracy todistribute and possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846; two counts of

–  –  –

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

–  –  –

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

–  –  –

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).

–  –  –

mistaken assumption. 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

–  –  –

judicial proceedings. See United States v. Olano, 507 U.S. 725 (1993). To prove effect on his substantial rights, Rodgers must demonstrate “a reasonable probability that, but for the error,

–  –  –

“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

–  –  –

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

–  –  –

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).

–  –  –

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.

–  –  –

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.

–  –  –

11



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