Case: 12-30359 Document: 00512216510 Page: 1 Date Filed: 04/22/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 22, 2013
No. 12-30359
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GEORGE CELESTINE,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:06-CR-60059-1
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
George Celestine appeals the 120-month sentence imposed following his
conditional guilty plea to one count of conspiracy to distribute cocaine and
cocaine base. In his plea agreement, Celestine reserved the “right to appeal as
it relates to Double Jeopardy and the Speedy Trial Act.” On appeal, Celestine
contends that the district court erred in denying his motion to dismiss the
indictment on the ground that his Sixth Amendment right to a speedy trial had
been violated. The Government has filed a motion to dismiss Celestine’s appeal
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-30359
on the ground that the Sixth Amendment issue was not preserved for appeal,
and thus, waived by Celestine’s guilty plea. Celestine opposes the motion to
dismiss.
A voluntary and unconditional guilty plea waives an appellant’s right to
challenge any nonjurisdictional defects, such as a speedy trial claim, in the
proceedings leading to a conviction. United States v. Bell, 966 F.2d 914, 915 (5th
Cir. 1992). However, by entering into a “conditional plea” pursuant to Federal
Rule of Criminal Procedure 11(a)(2), like Celestine’s plea in the instant matter,
a defendant may preserve the right to appeal an adverse ruling on a pretrial
motion. A conditional guilty plea must be made in writing, be consented to by
the Government, and be approved by the district court. Rule 11(a)(2).
In the instant case, the reservation in Celestine’s agreement was
unambiguous and reserved only claims relating to double jeopardy and the
Speedy Trial Act. Celestine suggests that, because he did not object to the
magistrate judge’s report and recommendation regarding his claim pursuant to
the Speedy Trial Act, it is illogical to conclude that he would preserve such a
claim in his agreement. However, Celestine’s suggestion fails to recognize that
he did not object to the magistrate judge’s report and recommendation relating
to his double jeopardy claim, yet preserved such a claim in his agreement.
Furthermore, after the district court ruled on his motion to dismiss, but before
Celestine entered his plea, Celestine filed another motion to dismiss the
indictment exclusively relying on the Speedy Trial Act. Thus, it is logical to
conclude that Celestine intended to reserve the right to appeal a claim pursuant
to the Speedy Trial Act and that such a reservation was not a “careless
oversight” on the part of trial counsel. Celestine’s valid guilty plea waived his
speedy trial claim pursuant to the Sixth Amendment because it was not
preserved in the plea bargain and does not rise to the level of a jurisdictional
challenge. See Bell, 966 F.2d at 915. Accordingly, the judgment of the district
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Case: 12-30359 Document: 00512216510 Page: 3 Date Filed: 04/22/2013
No. 12-30359
court is AFFIRMED. The Government’s motion to dismiss the appeal is
DENIED.
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