[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 05-13444 ELEVENTH CIRCUIT
DECEMBER 12, 2006
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 04-00081-CR-T-17-MAP
UNITED STATES OFAMERICA,
Plaintiff-Appellee,
versus
WILDER ARLEY SALDRRIAGA-PALACIO,
a. k. a. Wilder Arley Saldarria Palacio,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 12, 2006)
Before EDMONDSON, Chief Judge, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Defendant-Appellant Wilder Arley Saldrriaga-Palacio appeals his
conviction and 210-month sentence for (1) possession with intent to distribute five
kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of
the United States, in violation of 46 App. U.S.C. § 1903(a), (g); 18 U.S.C. § 2; and
21 U.S.C. § 960(b)(1)(B)(ii); and (2) conspiracy to possess with intent to distribute
five kilograms or more of cocaine while aboard a vessel subject to the jurisdiction
of the United States, in violation of 46 App. U.S.C. § 1903(a), (g), and (j); and 21
U.S.C. § 960(b)(1)(B)(ii). No reversible error has been shown; we affirm.
Saldrriaga-Palacio was arrested on a “go-fast” boat carrying 89 bales of
cocaine that weighed approximately 2,000 kilograms. He filed a financial
affidavit claiming indigence; and the district court appointed a lawyer to represent
him. Later, the district court granted a motion by Roy Kahn to substitute himself
as Saldrriaga-Palacio’s privately-retained lawyer. The government then filed a
motion requesting a hearing about the source of legal fees paid to Kahn on behalf
of Saldrriaga-Palacio. In its motion, the government argued that, because
Saldrriaga-Palacio initially claimed to be indigent, the criminal enterprise
directing the cocaine delivery for which Saldrriaga-Palacio was arrested might be
paying for his lawyer, which would create a conflict of interest requiring Kahn’s
disqualification. A magistrate judge granted the government’s motion for a
hearing.
2
At the hearing, Kahn explained that a Colombian lawyer contacted him on
behalf of Saldrriaga-Palacio’s “Uncle Walter,” who wanted to pay Kahn to
represent Saldrriaga-Palacio. The magistrate concluded that Kahn appeared to
have a conflict of interest about how he was retained and that his representation of
Saldrriaga-Palacio cast doubt on the fairness of the pending legal proceedings.
The magistrate disqualified Kahn from representing Saldrriaga-Palacio.
Saldrriaga-Palacio appealed the magistrate’s decision to the district court; and
while this appeal was pending, he again was assigned a court-appointed lawyer.
Before the district court ruled on his appeal of the magistrate’s disqualification
order, Saldrriaga-Palacio pleaded guilty to both counts in his indictment without a
plea agreement.
On appeal, Saldrriaga-Palacio first argues that the district court abused its
discretion in disqualifying his privately-retained lawyer, which denied his Sixth
Amendment right to the lawyer of his choice. He contends that his uncle, and not
a third-party criminal enterprise, was paying his legal fees to Kahn and that no
conflict of interest existed through Kahn’s representation. Saldrriaga-Palacio also
asserts that the district court did not review in a timely manner his appeal of the
magistrate’s order disqualifying Kahn.
3
The government responds that Saldrriaga-Palacio waived his challenge to
the magistrate’s disqualification order when he knowingly and voluntarily entered
an unconditional guilty plea. We agree.1
“A defendant’s unconditional plea of guilty, made knowingly, voluntarily,
and with the benefit of competent counsel, waives all non-jurisdictional defects in
that defendant’s court proceedings.” United States v. Pierre, 120 F.3d 1153, 1155
(11th Cir. 1997) (internal quotation and alteration omitted); see also United States
v. Patti, 337 F.3d 1317, 1322 (11th Cir. 2003) (concluding that a defendant waived
right to appeal denial of motion for a judge’s recusal by entering an unconditional
guilty plea). “A defendant who wishes to preserve appellate review of a non-
jurisdictional defect while at the same time pleading guilty can do so only by
entering a ‘conditional plea’ in accordance with [Federal Rule of Criminal
Procedure] 11(a)(2).” Pierre, 120 F.3d at 1155.
Here, the record reflects that Saldrriaga-Palacio’s guilty plea was made
knowingly and voluntarily and that, although his appeal of the magistrate’s order
disqualifying Kahn was pending at the time of his guilty plea, Saldrriaga-Palacio
did not enter -- or attempt to enter -- a conditional plea that preserved his right to
1
Because we conclude that Saldrriaga-Palacio has waived a challenge to the magistrate’s
disqualification order, we deny as moot his motion for consideration of sealed documents related to
the magistrate’s order.
4
pursue an appeal of the disqualification order.2 Therefore, by entering an
unconditional guilty plea, Saldrriaga-Palacio waived his appeal of the magistrate’s
order disqualifying Kahn; and we will not consider whether Kahn’s
disqualification was an abuse of the magistrate’s discretion.
Saldrriaga-Palacio next argues that his 210-month sentence was
unreasonable. He contends that, because his co-defendants -- with the exception
of the captain of the “go-fast” boat -- received 135-month sentences, the district
court failed to avoid sentencing disparities in calculating his sentence. Saldrriaga-
Palacio also asserts that the district court did not consider that he (1) was at the
lowest level of the smuggling operation, (2) received little compensation for his
work on the boat, and (3) was uneducated, poor, young, and unsophisticated. In
addition, he argues that his sentence was unreasonable because he was denied the
lawyer of his choice at sentencing, when he withdrew an objection to the district
court’s application of a sentencing enhancement for firearm possession.
2
We are not persuaded by Saldrriaga-Palacio’s arguments that (1) before accepting his guilty plea,
the magistrate should have explained that Saldrriaga-Palacio was waiving his right to appeal the
disqualification order and (2) his guilty plea was not knowing and voluntary because he was unaware
that an unconditional plea waived his right to appeal the disqualification order. Nothing in
Fed.R.Crim.P. 11 required the magistrate to inform Saldrriaga-Palacio about a conditional guilty
plea. And we conclude that Saldrriaga-Palacio’s contention that his court-appointed lawyer had a
conflict of interest in representing him -- because this lawyer had a financial interest in remaining
Saldrriaga-Palacio’s counsel and therefore was not motivated to appeal the magistrate’s
disqualification order -- is without merit.
5
Saldrriaga-Palacio was sentenced after the Supreme Court issued its
decision in United States v. Booker, 125 S.Ct. 738 (2005); so we review his
sentence for reasonableness in the light of the factors set out in 18 U.S.C. §
3553(a). United States v. Winingear, 422 F.3d 1241, 1244-46 (11th Cir. 2005).
Under section 3553(a), a district court should consider, among other things, the
nature and circumstances of the offense, the history and characteristics of the
defendant, the need for adequate deterrence and protection of the public, policy
statements of the Sentencing Commission, provision for the medical and
educational needs of the defendant, and the need to avoid unwarranted sentencing
disparities. See 18 U.S.C. § 3553(a)(1)-(7). “Review for reasonableness is
deferential”; and “the party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in the light of [the] record and the
factors in section 3553(a).” See United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005).
We conclude that Saldrriaga-Palacio’s sentence was reasonable. The
district court sentenced him to the lowest point of his Guidelines range of 210 to
262 months’ imprisonment. See id. (noting that “ordinarily we would expect a
sentence within the Guidelines range to be reasonable”).
6
In addition, in sentencing Saldrriaga-Palacio, the district court noted the
section 3553(a) factors and commented in particular on Saldrriaga-Palacio’s age,
his educational and work background, and the seriousness of his offense. The
district court concluded that the sentence imposed was not greater than necessary
to comply with the statutory purposes of sentencing. The district court was not
required to discuss all of the section 3553(a) factors at the sentencing hearing. See
United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (explaining that
“nothing in Booker or elsewhere requires the district court to state on the record
that it has explicitly considered each of the section 3553(a) factors or to discuss
each of the section 3553(a) factors”). And we note that not being represented by
the defendant’s choice of lawyer is not a section 3553(a) factor. See 18 U.S.C. §
3553(a)(1)-(7). Nothing in the record convinces us that Saldrriaga-Palacio’s
sentence was unreasonable in the light of the section 3553(a) factors.3
AFFIRMED.
3
The government asserts that, although Saldrriaga-Palacio asked the district court to sentence him
below his Guidelines range based on application of the section 3553(a) factors, his failure to object
after sentencing -- either that his sentence was unreasonable or that the district court did not consider
properly the section 3553(a) factors in determining his sentence -- indicates that we should review
Saldrriaga-Palacio’s challenge to the reasonableness of his sentence only for plain error. We need
not decide this issue because, even under a reasonableness standard, Saldrriaga-Palacio’s appeal
fails.
7