IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 17, 2008
No. 08-40120 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ELOY SANCHEZ GUERRERO
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before DAVIS, CLEMENT, and ELROD, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge.
Eloy Sanchez Guerrero (“Guerrero”) pled guilty to criminal conspiracy in
violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”),
18 U.S.C. § 1962(d). He appeals the denial of two pre-conviction motions and the
calculation of his sentence. We affirm his conviction and sentence.
I. FACTS AND PROCEEDINGS
On September 5, 2006, Guerrero was indicted on allegations that he
conspired with others to possess with intent to distribute cocaine and marijuana.
Several superceding indictments followed, and on February 22, 2007, a third
superceding indictment was returned containing fifteen counts, including
conspiracy to possess with intent to distribute cocaine and marijuana, possession
No. 08-40120
of a firearm by a felon, and engagement in a RICO conspiracy to distribute
controlled substances and protect and distribute the proceeds and profits from
1987 through 2006. The indictment alleged twenty-seven overt acts in
furtherance of the two-decade conspiracy. The government claimed that
Guerrero was the head of an enterprise responsible for the distribution of 1,900
kilograms of cocaine and 73,326 kilograms of marijuana. His brother, Vincente
Guerrero, was also allegedly in a leadership position in this enterprise.
On October 13, 2007, the district court disqualified Guerrero’s defense
counsel, Guy Lee Womack (“Womack”), based on its finding that Womack had
actual and potential conflicts of interest in representing Guerrero. The parties
agree that Womack represented both Guerrero and his brother as co-defendants,
and also represented at least one witness (“Witness”)1 who was attempting to
obtain a reduction in his sentence under Rule 35 of the Federal Rules of
Criminal Procedure by cooperating with the government. Womack met with
both brothers and Witness, informed them of possible conflicts, and obtained
waivers from all three. In informing Guerrero of Witness’s cooperation, Womack
both identified Witness and told Guerrero that Witness was incarcerated in the
same facility. Womack argued before the district court that at trial he would
hire other counsel to cross-examine any cooperating witnesses that he
represented.
On April 25, 2007, the district court denied Guerrero’s motion to suppress
evidence seized from his home in Roma, Texas. He claims that the government
lacked probable cause for the issuance of a search warrant.
1
Much of the record of this case remains sealed, so we will refrain from naming this
cooperating witness.
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No. 08-40120
Notwithstanding the foregoing, Guerrero pled guilty to the RICO charge
on August 14, 2007 pursuant to a plea agreement, and the other charges against
him were dismissed. He did not preserve any rights of appeal, and specifically
waived his right to appeal any sentencing issues in his written plea agreement.
The district court sentenced Guerrero to 360 months, despite the government’s
recommendation of 240 months.
Guerrero appeals his conviction and sentencing on three grounds: (1)
evidence from his home in Roma, Texas was improperly seized; (2) his original
counsel should not have been disqualified; and (3) the district court
miscalculated his sentence.
II. DISCUSSION
A. Suppression of Evidence
We have often held that “‘by entering a plea of guilty, a defendant
ordinarily waives all non-jurisdictional defects in the proceedings below,’ . . . and
‘if the record contains no manifestation of a reservation of appellate right, the
plea is presumptively unconditional and an appellate court may not reach the
merits of the defendant’s appeal.’” United States v. Sealed Appellant, 526 F.3d
241, 242 (5th Cir. 2008) (quoting United States v. Bell, 966 F.2d 914, 915, 917
(5th Cir. 1992)). This doctrine applies to denials of motions to suppress. See,
e.g., id. at 242–43; United States v. Stevens, 487 F.3d 232, 238 (5th Cir. 2007),
cert. denied, 128 S.Ct. 336 (2007); United States v. Wise, 179 F.3d 184, 186 (5th
Cir. 1999). By unconditionally pleading guilty, Guerrero has waived his right
to appeal the denial of his motion to suppress, and we need not reach the merits
of his argument.
B. Choice of Counsel
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(1) Waiver
Before reaching the merits of Guerrero’s choice of counsel claim, we must
again consider if he has waived his right of appeal with his guilty plea. Guerrero
argues that he was denied his choice of counsel when Womack was disqualified.
This argument does not raise a jurisdictional defect. The Supreme Court,
however, has recently held that the “erroneous deprivation of the right to
counsel of choice” is a “structural error” in violation of the Sixth Amendment and
is not subject to harmless-error analysis. United States v. Gonzalez-Lopez, 548
U.S. 140, 150–52 (2006). Other “structural errors” include the denial of counsel,
the denial of the right of self-representation, and the denial of the right to a
public trial. Id. at 149. In Gonzalez-Lopez, the Court specifically noted that:
[T]he choice of attorney will affect whether and on what terms the
defendant cooperates with the prosecution, plea bargains, or decides
instead to go to trial. In light of these myriad aspects of
representation, the erroneous denial of counsel bears directly on the
framework within which the trial proceeds, or indeed on whether it
proceeds at all. . . . Many counseled decisions, including those
involving plea bargains and cooperation with the government, do
not even concern the conduct of trial at all.
Id. at 150 (internal quotation omitted). Because Gonzalez-Lopez had been
erroneously denied the counsel of his choice, the Supreme Court reversed his
conviction and remanded the case for a new trial.
While Gonzalez-Lopez involved a trial rather than a guilty plea, it is
obvious that the choice of counsel may seriously impact a defendant’s decision
to plead guilty. If a defendant is erroneously denied the counsel of his choice, it
is a structural error in the trial that brings into question the voluntary and
intelligent character of the guilty plea itself. See Tollett v. Henderson, 411 U.S.
258, 267 (1973). But it is not subject to harmless-error analysis, as that “would
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No. 08-40120
be a speculative inquiry into what might have occurred in an alternate
universe.” Gonzalez-Lopez, 548 U.S. at 150. As such, even in cases where a
defendant has pled guilty, we must consider whether the district court
erroneously denied a defendant the right to his counsel of choice, and waiver will
not apply.
(2) Standard of Review
“[T]he Sixth Amendment guarantees the defendant the right to be
represented by an otherwise qualified attorney whom that defendant can afford
to hire, or who is willing to represent the defendant even though he is without
funds.” Gonzalez-Lopez, 548 U.S. at 144 (quoting Caplin & Drysdale, Chartered
v. United States, 491 U.S. 617, 624–25 (1989)). But the Sixth Amendment also
guarantees representation that is free from conflicts of interest. See Wood v.
Georgia, 450 U.S. 261, 269–71 (1981). While a defendant can knowingly and
intelligently waive conflicts of interest, the district court is allowed “substantial
latitude” to refuse such waivers in cases of either actual or potential conflict.
Wheat v. United States, 486 U.S. 153, 163 (1988); see also United States v.
Gharbi, 510 F.3d 550, 553 (5th Cir. 2007) (“[T]here is a presumption in favor of
a defendant’s counsel of choice, but that presumption may be overcome by an
actual conflict of interest, or by a showing of a serious potential for conflict.”).
Relying on Wheat, a string of Fifth Circuit cases has held that the correct
standard for reviewing a district court’s disqualification of a defense attorney for
conflict of interest is abuse of discretion.2
2
See Gharbi, 510 F.3d at 553; United States v. Millsaps, 157 F.3d 989, 995 (5th Cir.
1998); United States v. Sotelo, 97 F.3d 782, 791 (5th Cir. 1996); United States v. Vasquez, 995
F.2d 40, 42 (5th Cir. 1993); United States v. Reeves, 892 F.2d 1223, 1227 (5th Cir. 1990).
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No. 08-40120
Guerrero nonetheless argues that there is a split within this circuit on the
standard of review, and cites United States v. Vaquero, 997 F.2d 78 (5th Cir.
1993), and United States v. Snyder, 707 F.2d 139 (5th Cir. 1983), as holding that
the standard is simple error, which requires de novo review. Vaquero is not on
point; it involved the question of whether a waiver of conflicts of interest actually
waived the defendant’s rights, not whether disqualification was appropriate.
997 F.2d at 89–92. Snyder, on the other hand, did hold that the standard of
review in these cases is simple error, 707 F.2d at 144, but its holding on the
standard of review has been superceded by Wheat and the resulting cases from
this court. Only if the district court has abused its substantial discretion in this
area will we reverse the decision on appeal.
(3) Analysis
The district court did not abuse its discretion in disqualifying Guerrero’s
attorney, Womack. Womack was attempting to represent Guerrero and his
brother, who were both in leadership positions in a criminal enterprise spanning
two decades. He was also attempting to represent Witness, who was testifying
against Guerrero in exchange for a reduction in his sentence.
Guerrero insists that this court must defer to his waiver of any conflict of
interest. He cites United States v. Garcia for the proposition that “[i]f
defendants may dispense with the right to be represented by counsel altogether,
it would seem that they may waive the right to have their retained counsel free
from conflicts of interest.” 517 F.2d 272, 277 (5th Cir. 1975) (internal citations
omitted). But the Supreme Court found in Wheat that “no such flat rule can be
deduced from the Sixth Amendment presumption in favor of counsel of choice.”
486 U.S. at 160. Courts have an “independent interest” in ensuring the fairness
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of trials, even if the defendant has waived any conflicts of interest. Id.; see also
United States v. Izydore, 167 F.3d 213, 221 (5th Cir. 1999) (“[I]t is clear that a
defendant’s waiver does not necessarily preclude a district court from rejecting
a defendant’s counsel of choice when the overall circumstances of a case suggest
a conflict of interest may develop.”). To the extent that Garcia allowed an
absolute waiver of any conflicts of interest, it is no longer good law. The only
other case cited by Guerrero is United States v. Blau, 159 F.3d 68 (2nd Cir.
1998). But Blau did not involve disqualification of counsel; instead it was a
retrospective examination to determine if a defendant’s waiver of conflicts of
interest was effective in waiving his rights. Id. at 74–75. Guerrero’s waiver of
conflicts of interest will certainly operate to waive his rights, but it will not stop
this court or district courts from “ensuring that criminal trials are conducted
within the ethical standards of the profession and that legal proceedings appear
fair to all who observe them.” Wheat, 486 U.S. at 160.
As the Supreme Court noted in Wheat, “multiple representation of
criminal defendants engenders special dangers of which a court must be aware.”
Id. at 159. A conflict of interest may “prevent an attorney from challenging the
admission of evidence prejudicial to one client but perhaps favorable to another,
or from arguing at the sentencing hearing the relative involvement and
culpability of his clients in order to minimize the culpability of one by
emphasizing that of another.” Id. at 160 (quoting Holloway v. Arkansas, 435
U.S. 475, 490 (1978)). Such conflicts may also preclude a defense attorney from
“exploring possible plea negotiations and the possibility of an agreement to
testify for the prosecution . . . .” Holloway, 435 U.S. at 490.
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In this case, all of these potential conflicts were present. Each brother
would have an interest in downplaying his own culpability while emphasizing
the responsibility of the other in the organization. Given the length of the
conspiracy, it is possible that evidence implicating one of the defendants in some
of the transactions involved would have been favorable to the other defendant.
And a joint representation would have hindered the ability of either defendant
to testify against his brother in exchange for a reduced sentence. The district
court certainly did not abuse its discretion in determining that Womack could
not adequately represent both men at trial.
In addition to the potential conflicts of joint representation, the district
court also found actual and potential conflicts with Womack’s representation of
Witness. Already in custody, Witness volunteered to testify against Guerrero in
exchange for a reduction in his sentence. Womack had represented Witness
during his trial and acknowledged at the disqualification hearing that he
continued to represent him. Womack also acknowledged informing Guerrero of
Witness’s identity and that he was being detained in the same facility, thereby
creating a serious security issue as to Witness’s safety. Womack arguably may
have placed one of his clients in danger through his representation of another
client. Womack did receive a waiver of any conflicts of interest. However, “the
willingness of an attorney to obtain such waivers from his clients may bear an
inverse relation to the care with which he conveys all the necessary information
to them.” Wheat, 486 U.S. at 163. Representation of a government witness,
testifying in exchange for a reduction in sentence, while also representing the
defendant he is testifying against raises serious conflicts of interest.
Womack argued that he could simply hire another attorney to cross-
examine Witness, and that he would not inform that attorney of any confidential
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No. 08-40120
information he had gleaned from his previous representation. This arrangement
is similar to the one rejected by this court in Gharbi, 510 F.3d 550. In that case,
defendant Gharbi attempted to have an attorney brought on as co-counsel who
had represented his daughter in negotiating a plea bargain under which she
agreed to testify against Gharbi. Id. at 552. The district court found that this
created an “irreconcilable conflict of interest” because if Gharbi’s defense team
pulled punches in cross-examining his daughter, they would render Gharbi
ineffective assistance of counsel, while if they attacked her strongly, they might
jeopardize her plea agreement. Id. at 553. “In order to protect the rights of all
parties and preserve the appearance of fairness, the district court held that
Gharbi and [his daughter] needed separate and independent counsel.” Id. at
553–54. This court found the district court’s decision “well within the bounds
established by Wheat and . . . consistent with our precedent.” Id. at 554.
Because the district court held that Womack would have a conflict of
interest between attempting to discredit Witness or going easy on him to the
detriment of Guerrero, it disqualified Womack as counsel. The district court’s
decision to disqualify Womack, in light of his joint representation of Guerrero
and his brother as well as a cooperating witness, is in line with our precedent
and was not an abuse of discretion.
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No. 08-40120
C. Sentencing
Guerrero contends that the district court miscalculated his sentence of 360
months, and should have followed the government’s recommendation of 240
months. But Guerrero pled guilty pursuant to a plea agreement with an explicit
waiver of his right to appeal his sentence. We review waivers of appellate rights
in plea agreements de novo. United States v. Palmer, 456 F.3d 484, 488 (5th Cir.
2006). A defendant may waive his appellate rights in a plea agreement if (1) the
waiver was knowing and voluntary, and (2) the waiver applies to the
circumstances at hand, based on the plain language of the agreement. Id.; see
also United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).
Guerrero does not even mention his plea agreement, let alone contend that
it was involuntary. Because he indicated before the district court that he read
and understood the plea agreement, which included a clear waiver of appellate
rights, and acknowledged that he understood specifically that he was giving up
his appellate rights, his waiver was both knowing and voluntary. See Bond, 414
F.3d at 544. Guerrero also does not contend that the waiver did not apply to the
circumstances at hand. He waived his right to appeal the sentence imposed and
the manner in which it was calculated. Though we construe appellate waivers
narrowly, and against the United States, see Palmer, 456 F.3d at 488, Guerrero’s
waiver is broad and certainly covers a dispute about any alleged miscalculation
of his sentence. Because Guerrero has waived his right to appeal his sentence,
we need not address the merits of his argument.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
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