United States v. Desantiago , 145 F. App'x 961 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 23, 2005
Charles R. Fulbruge III
Clerk
No. 04-11077
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO SERGIO DESANTIAGO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-424-1-M
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Pedro Sergio Desantiago appeals his guilty-plea convictions
and sentences for possession with intent to distribute and
distribution of cocaine in violation of 21 U.S.C. § 841(a) and (b)
and possession of a firearm during a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A). Desantiago argues that his
trial counsel rendered ineffective assistance because he labored
under a conflict of interest. He also argues that his guilty plea
was involuntarily and unknowingly entered and that his sentence for
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-11077
-2-
the drug-related conviction violated United States v. Booker, 125
S. Ct. 738 (2005).
Desantiago has not sufficiently alleged that any conflict of
interest labored under by trial counsel adversely effected trial
counsel’s representation of him. See United States v. Infante, 404
F.3d 376, 390-92 (5th Cir. 2005). Moreover, our review of the
record indicates that, even if any conflict of interest did
adversely effect trial counsel’s representation of Desantiago,
Desantiago validly waived his right to conflict-free
representation. See United States v. Newell, 315 F.3d 510,
519-20 (5th Cir. 2002).
Our review of the record also indicates that Desantiago’s
guilty plea was knowingly and voluntarily entered. See United
States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). The
district court explained the nature of the charges to Desantiago
and the applicable minimum and maximum punishments that he could
receive for the charged offenses. See Bonvillain v. Blackburn, 780
F.2d 1248, 1250-51 (5th Cir. 1986). Moreover, Desantiago confirmed
that the factual resume for his plea agreement was true and
correct. The fact that trial counsel may not have explained the
presentence report to Desantiago did not effect the voluntariness
of his plea as the alleged failure to explain the presentence
report took place after his plea was entered. Likewise, Desantiago
does not explain why his alleged unconstitutional sentence rendered
his guilty plea involuntary.
No. 04-11077
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Finally, Desantiago argues that his sentence violated Booker
because it was enhanced based upon drug amounts that were neither
proven to a jury or admitted by him. The appeal waiver in
Desantiago’s plea agreement, to which he agreed before the Supreme
Court decided Booker, waived his right to appeal his conviction and
sentence unless his sentence exceeded the statutory maximum
punishment, there was an upward departure from the guidelines range
deemed applicable by the district court, there was an arithmetic
error at sentencing, or counsel rendered ineffective assistance.
Desantiago’s challenge to his sentence under Booker was not
preserved by the appeal waiver language. See United States v.
Cortez, ___ F.3d ___, No. 04-10152, 2005 WL 1404944 (5th Cir. June
16, 2005); United States v. McKinney, 406 F.3d 744, 746-47 (5th
Cir. 2005). Desantiago’s convictions and sentences are AFFIRMED.