*2 conversation, telephone investi- after that BAUER, Before CUDAHY gators companion watched Combs and TINDER, Judges. stop of a St. casino parking in the lot Louis PER CURIAM. waiting a black from a man bag back to there. Combs was then followed pleaded one Fontez L. Combs Madison, which he entered his house possession of a felon. count of a firearm bag. and the passenger with his black 922(g)(1). § He was sentenced 18 U.S.C. meeting St. Louis and Combs’s range to 33 top Guidelines Madison was record- arrival at his house in imprisonment. months’ arriving ed on About an hour after argues that the district court committed video. home, Combs met the informant outside deadline for elapsed motions house in East Louis. A his mother’s St. ago, months date no extension of cap- surveillance camera at the residence that deadline has been secured.” The *3 meeting. tured this said he had Combs say court did not whether it would be just gotten kilograms cocaine in St. grant inclined to an extension if asked. Louis and also had heroin available Second, court reminded pur- sale. The informant a make that, if a motion to suppress was chase. permitted, “time would have to be set information, aside” on the court’s docket for April briefing
Based on this on 7 the hearing. task force obtained a and a and executed federal residence, search warrant for the Madison that, After lead counsel waited 2-lk they marijuana, where found 650 grams to months file his motion to suppress, and handgun, a and ammunition. Combs was he never did leave seek to file it out of indicted in November 2009 and arrested time. In that motion Combs argued that appearance At his initial December. application for the warrant didn’t es 16, magistrate judge a appoint- December probable tablish to cause believe that con public ed the federal defender to represent traband would be found at his Madison all pretrial Combs and ordered that mo- Combs, residence. to According the video January 7, tions be filed no later than surveillance did not corroborate the affi in early February 2010. But the public ant’s assertion that Combs had received a pri- defender withdrew after Combs hired Louis; bag in black St. on that question, (who vate counsel to represent continue Combs, said footage video incon lawyers him appeal). in this The new Moreover, continued, clusive. they asked for a continuance so ob- could affiant had omitted that the task force application tain for the helicopter used a conduct to surveillance warrant, search which remained under thus, Combs, according to misled the granted unop- seal. The district court magistrate judge into believing that he posed motion and until postponed the trial being at all watched times “from a May un- February 10. On 18 the court vantage point on ground.” application. sealed the warrant district court denied mo- however, A trial, week before lead coun- tion, noting that the deadline for requested sel another continuance and re- passed motions had in January 2010 and counted his watching difficulties requested counsel had never an exten- footage April 3, video recorded sought sion permission an un- file counsel, According prosecutor had that, timely pointed motion. The court out given twice him a DVD containing the given when Combs was a second continu- videos, neither so but disc worked and ance, defense counsel had been reminded Combs did not in watching succeed that the passed motions deadline had but footage April until After watching he sought still hadn’t file extension to a videos, continued, in- counsel Combs had empha- motion. The court structed him to file a motion gave that it “ample sized defense counsel perceived discrepancies based on between hints, opportunity, finally subtle the content the videos and the search- blunt invitation ... seek an extension of May warrant affidavit. 4 the district deadline,” yet until the motion counsel had granted Septem- continuance nothing. ber 20 or- done but raised two concerns The court reasoned First, possible der. the court noted that “the had illumi- everything done “to prejudiced if the court suppres- have been filing a properly path nate the law the merits of his motion. “practice but could not heard motion” sion thus, and, given passage for counsel” pursue If a defendant wishes date, would not looming trial of time and do so before suppress, motion to the trial deadline or the motions extend set according trial and deadlines date. Fed. R. Crim. P. court. district ruling prompted defense That adverse Mancillas, 12(b)(3)(C); to file the finally seek leave counsel A defen acknowledged He *4 motion 12(b)(3) defense, any dant “waives an excuse or reason- not have that he did objection, raised request not request an failing for to explanation able sets” unless the court deadline argued that Combs earlier but extension good the waiver for grants relief from because of his mistake. not suffer should 12(e); see cause. Fed.R.Crim.P. United personal to pointed several Counsel 739, (7th Figueroa, 622 742 States v. F.3d circumstances that contribut- professional Acox, Cir.2010); States v. United delay filing suppression ed to the (7th Cir.2010); 729, 731-32 United States these did not motion but conceded (7th Johnson, 728, v. F.3d 730-31 Cir. 415 meet court’s dead- excuse his failure to 2005). Ordinarily we review for clear er lines. The motion concludes with counsel’s discretionary ror a district court’s decision “quite clearly that he under- admission untimely an to consider motion whether his” that the fault this case is stands Winbush, suppress. States v. 580 United that, although an obligation he had care- (7th Cir.2009); 503, F.3d 507-08 orders, fully the court’s he did not (7th Angle, v. 334 do so. The district court denied Combs’s .2000). Cir motion, wasn’t concluding good there But in this we first case filing. cause the late The court also for problem appeal address a with Combs’s explained way was “no to allow there filed, briefed, parties ignored have in their motion that both heard, ruled un continuing on without When a defendant enters an briefs. trial,” already had he judge nonju said all guilty plea, he waives do. filed a motion re- wouldn’t arising plea, before his risdictional defects denial, which the court also consider including Fourth Amendment claims. See denied, noting and continu- that extensions Phillips, ances been a “chronic problem” (7th Cir.2011); v. 861-63 firm. counsel’s (5th Cir.2006); Coil, 914 F.3d Galbraith, United States v. F.3d Combs then entered an unconditional That is the rule first He not guilty plea. right reserve the forty ago years announced almost in Tol on challenge the denial of his Henderson, lett U.S. 93 S.Ct. motion to (1973). There, 36 L.Ed.2d II. DISCUSSION explained “guilty Supreme plea represents a break in chain challenges process events” in the criminal because the him untimely let file an court’s refusal to solemnly open admitted in “defendant has the first and—for court that he is in fact offense shared argues that time — charged, he not with which he is delay filing. More- blame over, insists, independent relat- thereafter raise claims would Rules, ing Advisory of constitutional deprivation to the Committee Amendment; entry rights prior occurred United States v. Markling, 7 (7th at plea.” Cir.1993). Id. S.Ct. F.3d independent A thus “forecloses previously held that when a inquiry” pre-plea into these claims. defendant comply fails to with these re- operation 1602. Yet the of quirements pres- and’does ensure the this rule would force defendants who lost review, ervation of his for appellate issues pretrial “go through their motions an jurisdiction we lack to hear those claims. simply preserve entire trial Kingcade, United States v. review,” appellate issues for later Fed. (7th Cir.2009) (concluding that because Advisory R.Crim.P. *5 quirements are met. that plea “unequivocally 11(a)(2) in provides part Rule “juris- and thus we unconditional” lacked the consent of the court and “[w]ith the diction to hear the appeal”); United States may government, a defendant enter a con Cain, 840, Cir.1998) 155 F.3d ... plea reserving ditional of in that, (noting because defendant did not writing right appellate the an have court right appeal his review an adverse of a spec determination issue, jurisdiction this court “not have Although ified motion.” we have over aspect appeal”); [that] of but see writing requirement held that the is not Robinson, 270, United States v. jurisdictional, we not said the same (7th Cir.1994) (noting that “[e]ven express agreement about the absence of when a defendant pleads uncondi- government and the district court. tionally ... nonju- the court review Rogers, 925, See United States v. error”). risdictional plain errors for Typi- (7th Cir.2004). Advisory Commit cally, jurisdictional bar is asserted tee’s notes make clear a conditional government response in to a defen- 11(a)(2) guilty plea requires under Rule dant’s attempt to raise af- issues “unequivocal government acquiescence” ter entering plea. Here, an unconditional the explicit consent of the district however, government overlooked the court. Notes Adviso Fed.R.Crim.P. of of absence a conditional and re- Rules, ry Amendment; Committee on sponded to Combs’s brief as there is no Yasak, see question jurisdiction about our to evaluate (7th Cir.1989). The district court’s jurisdic- contentions. We raised approval ensures that defendant “is question tional during on our own oral not allowed to take' an on a matter argument, and the cited Eber- only fully developed by pro States, hart v. United 546 U.S. ceeding to trial.” Fed. R.Crim. P. (2005), S.Ct. in sug- L.Ed.2d Rules, Notes Advisory Committee of that, gesting appreciate neglecting Amendment; see United States v. the significance of fact that Combs had Bundy, 641, 647 guilty plea, entered a conditional fact, In courts decline to may have the waiver.” “waived Eberhart pleas unless appel is a of a line of recent cases which effectively dispose late court’s decision will Supreme distinguished the case. has *6 appel- an explicit issue: whether waiver of by failing that to raise government, the plea agreement late in a affects the rights untimeliness, the forfeits the de- issue of v. court’s See United States fense. Id. at 126 (3d Gwinnett, Cir.2007); 483 F.3d 201 case, In government appar- the Caruthers, v. United 458 F.3d States ently that requirements assumes the (6th Cir.2006); 471-72 v. States 11(a)(2) 33(a). Rule like in Rule those (5th Cir.2006); Story, 439 F.3d 230-31 position, If we with the agree this then Hahn, v. 359 United States F.3d government has that waived defense no, 1328 The answer is up by his claim gave decisions, according to these and that is entering plea. an unconditional position as well. Latham v. See Unit- Only explicitly the Ninth Circuit has ad- (7th States, Cir.2008); ed F.3d application dressed the Eberhart (7th Mason, v. F.3d United States 11(a)(2), and in that en banc decision Cir.2003). But an unconditional adopted suggested the the here view plea very from a is different defendant’s government. the v. See United States bargained-for promise not to Castillo, (9th Jacobo F.3d our own has shown that indeed research Cir.2007) (en banc). The defendant in Ja- out in singled one of the four circuits Jaco- appealed cobo Castillo had conviction actually agrees bo with our view Castillo after entering guilty plea an unconditional pretrial that a the failure issue concerning sought to raise issues guilty plea means of a conditional de- preindictment delay and an unsuccessful jurisdiction to prives court of at 950. gov- Id. The v. that issue. See United States a ernment did assert absence of Mendez-Santana, (6th Cir. ground as bar the 2011). appear other circuits to be Two appeal. majority at 951. Id. Jaco- Bundy, 392 split. Compare bo reasoned F.3d Castillo defendant’s Garcia, Cir.1995). party with United States v. Neither has offered a (2d Cir.2003). note, too, why reason we should overlook Combs’s agree we are inclined dissent’s can, unconditional even we nor do ques- reasoning in Jacobo Castillo we see a to do reason so. tion of is unrelated 11(a)(2) grounded instead Article III. CONCLUSION Callahan, III. explained Judge As reasons, For foregoing entry of an unconditional Dismissed. guilt “removes the issue of case, rendering any pre-plea moot chal- CUDAHY, Judge, concurring in lenges implicate validity do the judgment. Castillo, itself.” admission Jacobo Whatever ju- the merits of the (Callahan, J., dissenting). F.3d at 957 Un- risdictional as a issue matter first im- view, an appellate ju- der this court lacks pression, question this appears to be risdiction over claims “because of controversy.” of a or absence case controlled relevant Seventh Circuit precedent. See United v. To that we would add that Rule (7th Kingcade, Cir. timing unlike rules addressed 2009); Elizalde-Adame, progeny Eberhart and its it re- because quires express govern- (7th consent of Cir.2001); If ment and the district court. we Cain, government’s position its over- Cir.1998).
sight or can acquiescence permit defen- challenge
dant to ruling adverse on a motion, then we must also counte- usurp
nance that the independent right
district to accept court’s reject plea. a conditional effect the Cheryl BURNS, Plaintiff-Appellant, A. government would read out of Rule *7 requirement agree- ORTHOTEK, INC. EMPLOYEES’ allowing ment for a conditional TRUST, PLAN PENSION AND blessing. the district court’s al., Defendants-Appellees. et unwilling We are to overrule our own No. 10-1521. decisions and embrace the Ninth Circuit’s offhand, view of an simply strength Court of Appeals, unbriefed reference to Eberhart made at Seventh Circuit. argument. oral We cannot know whether Argued Oct. even is of our aware con- end, trary though, decisions. Sept. Decided jurisdic- wouldn’t matter us whether Rehearing and En Banc Rehearing tion intact despite remains the uncondi- Oct. Denied 2011.* guilty plea. tional nature forego a defense—wheth- by design neglect er we are not —but obligated government’s waiv- 934; Rogers,
er. See 387 F.3d at Schmidt, * Tinder, The Honorable John Daniel this case. Judge, no took in the consideration of Notes Commit- defendant did not condition agree- Rules, Amendment, tee thus ment on right pre-plea to appeal motions exception allowing creates claims); we lacked to review specific defendants to Elizalde-Adame, issues for review certain re- Cir.2001) (concluding
Notes
Notes
be-
Fed.R.Crim.P.
appel-
not a bar to
jurisdictional
unconditional
rules and court-creat-
tween
See,
because,
court,
e.g.,
according
Do-
rules.
late
“claim-processing”
ed
—
States,
-,
procedure,
U.S.
lan v.
none of the rules of criminal
(2010) (hold-