United States of America v. Quintez L. Turner

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2345
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
Q UINTEZ L. TURNER ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:18-cr-20057-CSB-EIL-1 — Colin S. Bruce, Judge.
____________________
A RGUED S EPTEMBER 7, 2022 — DECIDED D ECEMBER 22, 2022
____________________
Before S YKES , Chief Judge, and H AMILTON and BRENNAN ,
Circuit Judges.
BRENNAN , Circuit Judge. Quintez Turner pleaded guilty to
three firearm and drug charges after police discovered a pis-
tol, a rifle, marijuana, and heroin in his apartment. On appeal,
Turner claims the district court should have suppressed the
drugs and firearms as evidence because the officers lacked
probable cause for the search. He also challenges his sentence,

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2 No. 21-2345
arguing that the district court improperly relied on two prior
state convictions to enhance his statutory maximum sentence.
Because Turner entered an unconditional plea in open
court, he waived any objection to the district court’s suppres-
sion ruling. We thus decline to review the merits of Turner’s
suppression challenge. As for his sentence, we agree the dis-
trict court erred in enhancing Turner’s maximum penalty and
remand for resentencing.
I. Background
Ramiro Aguas owned an apartment complex in Cham-
paign, Illinois. In late October 2018, Aguas received a tenant
complaint about a strong marijuana odor and suspicious drug
activity at Apartment 103. He called the police department to
complain. Aguas told an investigator that, on three occasions
between October 2018 and November 2018, he had smelled
marijuana when passing by Apartment 103 on his way to
show the empty unit directly above it, Apartment 203. Once
inside the empty unit, Aguas continued to detect a strong ma-
rijuana odor. He further reported that he had knocked on
Apartment 103’s door twice during the same period. Both
times, a man, later identified as Quintez Turner, opened the
door. On each occasion, Aguas smelled marijuana coming
from the apartment. Police Investigator Matthew Quinley and
Aguas swore to these facts in an affidavit. That affidavit did
not mention that Quinley had visited the complex and identi-
fied a marijuana odor when inside Apartment 203 but not
when passing by Apartment 103.
Based solely on the affidavit, Quinley obtained two search
warrants for Apartment 103 from a state court judge. The first
authorized a canine sniff outside the apartment. The second

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No. 21-2345 3
authorized a search of the apartment conditioned on a posi-
tive canine alert. When outside the apartment door, a police
dog alerted to the presence of drugs. The officers then entered
the apartment and found a pistol, a rifle, marijuana, heroin,
and a scale with heroin residue. A grand jury charged Turner
with possession of a firearm as a convicted felon, 18 U.S.C.
§ 922(g)(1) (Count 1), possession of heroin with intent to dis-
tribute, 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (Count 2), and posses-
sion of a firearm in furtherance of a drug trafficking offense,
18 U.S.C. § 924(c)(1)(A) (Count 3).
Before trial, Turner moved to suppress the evidence seized
at his apartment because the officers lacked probable cause
for the search in violation of the Fourth Amendment. He filed
no other substantive motions. After a hearing at which both
Quinley and Aguas testified, the district court denied Turner’s
suppression motion. It found Aguas a credible informant and
concluded that the officers had probable cause for both the
canine sniff and the apartment search.
After the motion was denied, Turner filed a pro se letter
with the district court expressing a desire to plead guilty. The
letter stated in relevant part: “I’m … ready to plea guilty … I
just want to plea to an open sentence to reserve all my ap-
peals.” Turner also said he did not want to accept the govern-
ment’s plea agreement, and he reiterated: “I just want to plea
to an open sentence and reserve all my rights to appeal.” The
letter did not mention his motion to suppress.
A magistrate judge held a change of plea hearing in Feb-
ruary 2021. Turner’s counsel, appearing via phone, confirmed
Turner wanted “an open plea.” The government expressed
concern about defense counsel’s phone appearance, stating
that “the nature of the open plea is … for the purpose of

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4 No. 21-2345
preserving any number of appellate issues; and this just
becomes one more.” The hearing continued with Turner’s
consent, and the magistrate judge conducted a thorough plea
colloquy under Federal Rule of Criminal Procedure 11(b), en-
suring Turner knowingly and voluntarily entered his plea.
During the colloquy, the magistrate judge told Turner that,
“by entering a plea,” he preserved his “right under federal
law to appeal both [his] sentence and conviction.” At no point
did Turner say he wished to appeal the district court’s sup-
pression ruling. Turner then pleaded guilty to all three counts
in open court. On the magistrate judge’s recommendation, the
district court accepted Turner’s guilty pleas on each of the
three charged offenses.
Before sentencing, the government filed an information
stating its intent to use Turner’s two prior Illinois felony con-
victions to enhance his sentence for Count 2, the heroin
charge. See 21 U.S.C. § 851. The government identified
Turner’s 2001 conviction for unlawful possession with intent
to deliver cocaine, 720 I LL. C OMP . STAT. 570/401(c)(2), and his
2015 conviction for unlawful delivery of a controlled sub-
stance, 720 I LL. C OMP . STAT. 570/401(d). A prior felony drug
offense raises the statutory maximum penalty for the heroin
charge from twenty to thirty years in prison. 21 U.S.C.
§ 841(b)(1)(C). Given Turner’s prior convictions, the district
court applied the sentencing enhancement without objection.
In the revised presentence investigation report, Turner
was designated a “career offender” under the Sentencing
Guidelines because his Illinois convictions qualified as prior
“controlled substance offense[s].” U.S.S.G. § 4B1.1(a). The ca-
reer-offender designation resulted in a criminal history cate-
gory of VI. U.S.S.G. § 4B1.1(b). And since Turner faced a

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No. 21-2345 5
thirty-year maximum penalty due to the sentencing enhance-
ment, his offense level was 34. U.S.S.G. § 4B1.1(b). Turner was
credited with acceptance of responsibility for a final offense
level of 31. U.S.S.G. § 3E1.1. This resulted in a preliminary
Guidelines range of 248 to 295 months’ imprisonment, which
included a mandatory consecutive 60-month sentence for the
Count 3 firearm charge. Because Turner faced multiple counts
of conviction, including one under 18 U.S.C. § 924(c), Turner’s
final Guidelines range was 262 to 327 months’ imprisonment.
U.S.S.G. § 4B1.1(c).
At the sentencing hearing, the district court adopted the
revised presentence report. The court stated that Turner faced
“up to 30 years’ imprisonment” for the Count 2 heroin charge.
For that count, the government recommended 267 months’
imprisonment. The district court then sentenced Turner to 120
months’ imprisonment on Count 1, 234 months’ imprison-
ment on Count 2 to run concurrently with Count 1, and 60
months’ imprisonment on Count 3, consecutive to the first
two counts, for a total of 294 months in prison.
II. Conditional Plea
On appeal, Turner seeks to challenge the district court’s
denial of his motion to suppress. “But there is an immediate
and obvious barrier to his appeal.” United States v. Adigun, 703
F.3d 1014, 1018 (7th Cir. 2012). A defendant who enters an un-
conditional guilty plea “waives all nonjurisdictional defects
arising before his plea, including Fourth Amendment claims.”
United States v. Combs, 657 F.3d 565, 568 (7th Cir. 2011).
Federal Rule of Criminal Procedure 11(a)(2) provides an
exception to this waiver under certain circumstances: “With
the consent of the court and the government, a defendant may

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6 No. 21-2345
enter a conditional plea of guilty …, reserving in writing the
right to have an appellate court review an adverse determina-
tion of a specified pretrial motion. A defendant who prevails
on appeal may then withdraw the plea.” F ED. R. C RIM .
P. 11(a)(2). A district court may accept a conditional plea only
if the appellate court’s decision on the preserved issues would
“completely dispose of the case.” United States v. Yasak, 884
F.2d 996, 999 (7th Cir. 1989). When a defendant fails to comply
with these requirements, “we lack jurisdiction” to hear the
defendant’s pre-plea claims. Combs, 657 F.3d at 569. “[A]ll
non-jurisdictional issues not specifically reserved in the con-
ditional plea agreement remain waived.” United States v. Phil-
lips, 645 F.3d 859, 862 (7th Cir. 2011).
Turner claims that he entered a conditional guilty plea pre-
serving the right to appeal the district court’s suppression rul-
ing. He argues that his pro se letter—in which he wrote that
he wished to “reserve all [his] appeals”—satisfies Rule
11(a)(2)’s writing requirement. Turner further contends that
the government and the district court implicitly consented to
a conditional plea because they continued with the change of
plea hearing with knowledge of his letter. For Turner, this sat-
isfies the “intent and purpose” of Rule 11(a)(2). Yasak, 884 F.2d
at 1000.
The conditional plea requirements under Rule 11(a)(2) are
not satisfied here, formally or functionally. Turner pleaded
guilty to all three charges in open court without a plea agree-
ment. Although Turner’s pro se letter provides written evi-
dence of his desire to preserve his appellate rights, the record
does not show the reservation of a specific pretrial motion, or
consent by the government or the district court. We discuss
each requirement in turn.

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No. 21-2345 7
A. Writing
A defendant seeking to enter a conditional guilty plea
must reserve the right to appeal a specified pretrial motion
“in writing.” F ED. R. C RIM . P. 11(a)(2). The writing require-
ment “ensure[s] that careful attention will be paid to any
conditional plea” by providing a clear statement of the plea’s
conditions as well as the government’s assent to those condi-
tions. Yasak, 884 F.2d at 999. The rule’s writing requirement is
not itself jurisdictional. United States v. Markling, 7 F.3d 1309,
1313 (7th Cir. 1993). Rather, it is more in the nature of a right
which the government may expressly waive. Yasak, 884 F.2d
at 999.
In Yasak, we upheld a conditional plea under Rule 11(a)(2)
despite the lack of a written plea agreement. 884 F.2d at 1000.
The defendant’s plea hearing transcript “plainly” showed
that the government agreed to a conditional plea, the district
court accepted the plea, and the court’s prior ruling on a mo-
tion to dismiss “was the specific (and dispositive) issue for ap-
peal.” Id. On appeal, the government affirmed its agreement
to the conditional plea. Id. Given the circumstances, the plea
transcript provided “a writing of sorts” that sufficed to “con-
stitute the writing required by Rule 11.” Id.
We later held in Markling that a plea proposal letter from
the government qualified as a writing because it “outlin[ed]
the terms of [the defendant’s] proposed plea.” 7 F.3d at 1313.
According to the letter, both the defendant and the govern-
ment agreed to a conditional plea in which the defendant re-
served his right to appeal the court’s denial of a motion to
suppress. Id. As in Yasak, the government agreed on appeal
that it had consented to the defendant’s conditional plea in
the district court. Id.

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8 No. 21-2345
Turner’s pro se letter and the change of plea hearing tran-
script are written documents preserved in the record. The
government has acknowledged as much, conceding that the
letter and the hearing transcript “might” satisfy the writing
requirement under Rule 11(a)(2). Even if the plea hearing
transcript is “a writing of sorts” for the purpose of the rule,
Yasak, 884 F.2d at 1000, the circumstances in Turner’s case do
not match those of Yasak or Markling. As we discuss next, nei-
ther the letter nor the plea hearing transcript provides
evidence of the specific issue Turner sought to preserve for
appeal, the government’s consent, or the district court’s con-
sent.
B. Specified Pretrial Motion
Rule 11(a)(2) requires that a conditional plea identify the
“specified pretrial motion” subject to appeal. F ED. R. C RIM . P.
11(a)(2). “[T]o preserve an issue for appeal, a conditional plea
must precisely identify which pretrial issues the defendant
wishes to preserve for review.” United States v. Desotell, 929
F.3d 821, 826 (7th Cir. 2019) (quoting United States v. Kingcade,
562 F.3d 794, 797 (7th Cir. 2009)). Turner’s pro se letter and the
change of plea hearing transcript do not denote which pretrial
rulings Turner sought to preserve. Acknowledging this,
Turner asks the court to infer that he satisfied the specificity
requirement because he filed only one substantive pretrial
motion, his motion to suppress. Therefore, the plea must have
been conditioned on appeal of that motion.
Rule 11(a)(2) contains no exception to its specificity re-
quirement in cases with only one pretrial motion. This court
held that the defendant in Adigun failed to abide by this rule,
reasoning that the “[d]efense counsel [had] stat[ed] that Adi-
gun was entering an ‘open plea’” and there was “no indication

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No. 21-2345 9
in the record of any issues preserved for appeal.” 703 F.3d at
1019. Turner’s counsel had ample opportunity at the plea
hearing to specify that Turner wanted to preserve his right to
appeal the motion to suppress—but did not. As in Adigun,
Turner’s defense counsel confirmed that Turner wanted “an
open plea.” And at the start of the hearing, the magistrate
judge asked Turner’s counsel whether the parties had a plea
agreement in place. Turner’s counsel responded, “it is an open
plea.” The record fails to identify the district court’s suppres-
sion ruling as the specific issue reserved for appeal.
This court’s ruling in United States v. Sarraj, 665 F.3d 916
(7th Cir. 2012), does not aid Turner. In Sarraj, the defendant
entered a written conditional plea, which specified the reser-
vation of two pretrial motions for appeal. 655 F.3d at 919. This
court concluded that the defendant had flexibility as to which
arguments he emphasized when litigating the merits of those
pretrial motions on appeal. Id. at 920. Despite what Turner
suggests, we did not hold that defendants have flexibility in
specifying which issues are preserved.
C. Government Consent
Under Rule 11(a)(2), the government must consent to a
conditional plea agreement. The rule “requires ‘unequivocal
government acquiescence.’” Adigun, 703 F.3d at 1019 (quoting
Yasak, 884 F.2d at 999). When “there is no evidence of any
prosecutors’ agreement to a conditional plea,” the defendant
has failed to comply with this requirement. Id. Even without
a written plea agreement in Yasak and Markling, the defend-
ants provided evidence of the government’s approval. In
Yasak, “[t]he plea hearing transcript plainly show[ed] that
both parties,” one being the government, “agreed to the con-
ditional plea.” 884 F.2d at 1000. In Markling, the proposal

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10 No. 21-2345
letter stated: “The Government consents to entry of this con-
ditional plea.” 7 F.3d at 1313. And in both Yasak and Markling,
the government agreed on appeal that it had assented to a
conditional plea. 884 F.2d at 999; 7 F.3d at 1313.
Turner can point to no statement—in either his pro se let-
ter or the change of plea hearing transcript—where the gov-
ernment provides “unequivocal” consent to a conditional
plea. Turner underscores a single statement at the plea hear-
ing, where the government observed that an open plea is done
“for the purpose of preserving any number of appellate
issues … .” This remark is far from sufficient to establish gov-
ernment consent. The government’s recognition of the
purpose of an open plea is not an express agreement to a con-
ditional plea, let alone one that specifically identifies Turner’s
right to appeal his motion to suppress.
He also argues that the government failed to object to his
pro se letter when discussing it at the change of plea hearing,
demonstrating its consent to the letter’s contents. In the pro se
letter, Turner referred to his appellate rights in general terms.
He wrote that he wanted an “open sentence” and sought to
“reserve all [his] rights to appeal.” Unlike Turner claims, the
letter did not contain the “conditions of his plea.” The govern-
ment did not have notice of its need to object to the letter’s
conditions because it contained none. The government’s lack
of objection at the plea hearing falls short of establishing “un-
equivocal government acquiescence.”
D. District Court Consent
As with the government, Rule 11(a)(2) requires the district
court to give “explicit” consent to a conditional plea. Combs,
657 F.3d at 569. And “district courts must decline to accept

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No. 21-2345 11
conditional pleas unless the appellate court’s decision will ef-
fectively dispose of the case.” Id. Because the district court had
his pro se letter at the time of the change of plea hearing,
Turner argues that the district court understood the condi-
tional nature of his plea. For support, Turner highlights one
statement from the district court at the plea hearing. There,
the magistrate judge advised Turner that “by entering a plea,
an open plea,” he was “preserving [his] right under federal
law to appeal both [his] sentence and conviction.”
The magistrate judge’s statement does not constitute ex-
plicit consent to a conditional plea. The change of plea hearing
transcript in Yasak “plainly show[ed]” that the district court
“understood its ruling on Yasak’s motion to dismiss was the
specific (and dispositive) issue for appeal.” Yasak, 884 F.2d at
1000. And in Markling, the district court had received a de-
tailed plea agreement that mentioned Markling’s motion to
suppress. 7 F.3d at 1313. Here, the plea hearing transcript does
not show that the district court understood its suppression
ruling was a specific and dispositive issue reserved for appeal.
Thus, that court could not have accepted Turner’s conditional
plea. And Turner’s letter identified no specific motion. We
cannot imply, let alone find “explicit,” the district court’s con-
sent to a conditional plea based on either the plea hearing
transcript or Turner’s letter.
* * *
We conclude that Turner did not enter a valid conditional
guilty plea. His pro se letter and the change of plea hearing
transcript do not identify a specific and dispositive pretrial
motion reserved for appeal. Nor do they show acceptance of
a conditional plea by the government or the district court.

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12 No. 21-2345
Turner’s failure to comply with Rule 11(a)(2) precludes our
review of the district court’s suppression ruling.
III. Sentence
Turner also challenges his sentence. He argues the district
court improperly enhanced the maximum penalty on
Count 2, the heroin charge, by relying on two prior state con-
victions. Turner forfeited this objection by failing to raise it in
the district court, so we review for plain error. United States v.
Ruth, 966 F.3d 642, 645 (7th Cir. 2020) (citing F ED. R. C RIM . P.
52(b)).
A. Predicate Felony Drug Offenses
Turner pleaded guilty to all three charges against him, in-
cluding possession of heroin with intent to distribute. 21
U.S.C. § 841(a)(1), (b)(1)(C). The statutory maximum penalty
for the heroin conviction increases from twenty to thirty years
in prison if a defendant has a “prior conviction for a felony
drug offense.” 21 U.S.C. § 841(b)(1)(C). A “felony drug of-
fense” refers to an offense “that prohibits or restricts conduct
relating to narcotic drugs, marihuana, anabolic steroids, or
depressant or stimulant substances.” 21 U.S.C. § 802(44).
Based on Turner’s 2001 and 2015 Illinois felony convictions
under 720 I LL. C OMP . STAT. 570/401(c)(2) and 720 I LL. C OMP .
STAT. 570/401(d), the district court enhanced Turner’s maxi-
mum sentence.
Our decision in Ruth squarely prohibits considering a con-
viction under § 401(c)(2) as a felony drug offense under 21
U.S.C. § 841(b)(1)(C). 966 F.3d at 650. Under the familiar cate-
gorical approach, prior state convictions qualify as felony
drug offenses “[i]f, and only if, the elements of the state law
mirror or are narrower than the federal statute.” Id. at 646

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No. 21-2345 13
(quoting United States v. De La Torre, 940 F.3d 938, 948 (7th Cir.
2019)). We concluded in Ruth that Illinois defines cocaine in a
matter “categorically broader than the federal definition.” Id.
at 647. The Illinois definition includes cocaine’s “positional”
isomers whereas the federal definition does not. Id. (compar-
ing 720 I LL. C OMP . S TAT. 570/206(b)(4) with 21 U.S.C. § 812,
Schedule II(a)(4)). Thus, a conviction under that Illinois stat-
ute “is not a predicate ‘felony drug offense’ that triggers” the
sentencing enhancement. Id. at 650. Under Ruth, the district
court plainly erred in using Turner’s conviction under
§ 401(c)(2) to enhance his maximum sentence.
The district court also viewed Turner’s 2015 conviction for
the manufacture or delivery of a controlled substance under
720 I LL. C OMP . STAT. 570/401(d) as a prior felony drug offense.
We have not yet considered whether the conduct prohibited
by § 401(d) is categorically broader than its federal counter-
part. The Illinois provision makes it unlawful to manufacture
or deliver “any other amount of a controlled or counterfeit
substance … classified in Schedules I or II.” 720 I LL. C OMP .
STAT. 570/401(d). Under Illinois law, Schedule II includes the
same cocaine provision we examined Ruth. 720 I LL. C OMP .
STAT. 570/206(b)(4). Because § 401(d) references the same,
broader Illinois cocaine definition, the government concedes
that this court’s holding in Ruth may also apply to a § 401(d)
conviction.
Regardless of the breadth of the state statute, a state con-
viction may still serve as a predicate felony offense if the Illi-
nois provision is divisible. If so, then the court may apply the
modified categorical approach and “consult a limited class of
documents” to decide whether a particular alternative ele-
ment formed the basis of Turner’s conviction. Descamps v.

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14 No. 21-2345
United States, 570 U.S. 254, 257 (2013). We previously held that
a similar provision which banned the possession of “a con-
trolled substance” was indivisible. Najera-Rodriguez v. Barr,
926 F.3d 343, 351 (7th Cir. 2019) (addressing 720 I LL. C OMP .
STAT 570/402(c)). That provision also referenced the controlled
substances listed in the Illinois drug schedules. Id. at 347.
Based on an analysis of charging and sentencing documents,
we concluded that the statute did not require the identifica-
tion of the controlled substance as an element of the offense.
Id. at 356.
Because Turner did not object to the use of his 2015 con-
viction as a predicate felony offense, the district court did not
consider the breadth or divisibility of § 401(d). On appeal, the
government concedes the potential applicability of Ruth to
§ 401(d), but it does not specifically argue the divisibility of
this particular provision. Instead, the government agrees that
a remand for resentencing is proper based on the district
court’s reliance on § 401(c)(2). Given our finding of plain error
(discussed below), we agree to remand this case for resentenc-
ing.
B. Plain Error
On plain error review, the district court’s application of
the sentencing enhancement must have affected Turner’s sub-
stantial rights. Id. (citing United States v. Olano, 507 U.S. 725,
732 (1993)). We exercise our discretion to correct such an error
when it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Olano, 507 U.S. at 736. In
Ruth, the district court’s application of an improper sentenc-
ing enhancement affected the defendant’s substantial rights
because it increased his Guidelines range. 966 F.3d at 650.

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No. 21-2345 15
Because Turner faced a thirty-year maximum sentence as
a career offender, his offense level was 34; without the sen-
tencing enhancement his offense level would have been 32.
U.S.S.G. § 4B1.1(b)(2) & (3). Given the three-point decrease for
acceptance of responsibility, Turner’s final offense level
would have been 29, not 31. With a criminal history category
of VI, this would have resulted in an alternative preliminary
Guidelines range of 215 to 248 months in prison, instead of
248 to 295 months.
But the error here did not affect Turner’s final Guidelines
range. U.S.S.G. § 4B1.1(c) recommends specific Guidelines
ranges for career offenders convicted under 18 U.S.C. § 924(c).
Due to his multiple convictions, including one under 18
U.S.C. § 924(c), Turner’s final Guidelines range totaled 262 to
327 months’ imprisonment. With or without the application
of the sentencing enhancement, it turns out that Turner faces
the same final Guidelines range under U.S.S.G. § 4B1.1(c).
Given that the application of the sentencing enhancement
would not have changed Turner’s final Guidelines range, we
consider whether the increased statutory maximum resulted
in plain error. “[T]he answer to that inquiry turns on preju-
dice.” United States v. Currie, 739 F.3d 960, 964 (7th Cir. 2014).
No prejudice exists “if it was clear that the sentencing judge
would have imposed the same sentence absent the error.” Id.
at 965.
At the sentencing hearing, the district judge incorrectly
stated that the statutory maximum for Count 2, the heroin
charge, was “up to 30 years’ imprisonment.” The government
recommended 267 months’ imprisonment for that same
count, a sentence above the correct statutory maximum of
twenty years, or 240 months. In arriving at Turner’s final

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16 No. 21-2345
sentence, the district court stated it was “not going to max out
the guidelines” but rather wanted “to go slightly above the
minimum.” The district court ultimately sentenced Turner to
234 months in prison on Count 2.
The district court arrived at the correct Guidelines range
and gave Turner a sentence below the correct statutory maxi-
mum. But the sentencing enhancement could have had a prej-
udicial effect. Based on the sentencing hearing transcript, it is
not clear the district court “would have imposed the same
sentence absent the error.” Currie, 739 F.3d at 965. Like the
Guidelines range, “[s]tatutory minima and maxima have an
obvious anchoring effect on the judge’s determination of a
reasonable sentence” by “demarcat[ing] the range within
which the judge may impose a sentence.” Id. at 966. A statu-
tory maximum is “necessarily one of the circumstances that
the judge had to consider in ascertaining a reasonable sen-
tence,” as the district court did here. Id. Although the district
court stated it did not want to “max out the guidelines,” it
made no statement about whether it would have imposed the
same sentence for Count 2 regardless of the heightened statu-
tory maximum. Because “it is difficult to say whether the
court would have arrived at the same sentence” without the
enhancement, we remand for resentencing. Id.
For the reasons stated above, we A FFIRM Turner’s convic-
tion, and we R EMAND to the district court for resentencing.

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No. 21-2345 17
HAMILTON , Circuit Judge, concurring. I join the court’s
opinion. On the problem of waiving appellate rights, the
opinion shows that Turner and his lawyer failed to satisfy the
requirements of Federal Rule of Criminal Procedure 11(a)(2)
for a conditional appeal that would have preserved Turner’s
right to appeal the denial of his motion to suppress. The tran-
script of the plea hearing shows that the magistrate judge who
took the plea, the prosecutor, and defense counsel were all
aware that Turner wanted to preserve his right to appeal at
least something. Denial of the motion to suppress was the
most obvious candidate. The transcript also indicates, how-
ever, that neither defense counsel, the prosecutor, nor the
magistrate judge recognized how Rule 11(a)(2) might apply
to Turner’s “open plea” to defeat his attempt to appeal that
denial.
Turner’s motion to suppress raised a substantial issue, es-
pecially in light of law enforcement’s unsuccessful effort to
corroborate the accusations of the landlord, who wanted to
get Turner out of the apartment due to nonpayment of rent.
In a similar case about Rule 11(a)(2), our colleagues in the
Fourth Circuit reversed the denial of relief under 28 U.S.C.
§ 2255 because the defendant had received ineffective assis-
tance of counsel as to whether he could plead guilty under an
open plea and still appeal the denial of his motion to suppress
evidence. United States v. Akande, 956 F.3d 257 (4th Cir. 2020).

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