FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 12, 2006

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-13444

Non-Argument Calendar

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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
2

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. 
3

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. 
 Because we conclude that Saldrriaga-Palacio has waived a challenge to the magistrate’s 1

disqualification order, we deny as moot his motion for consideration of sealed documents related to

the magistrate’s order.

4

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 nonjurisdictional 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
 We are not persuaded by Saldrriaga-Palacio’s arguments that (1) before accepting his guilty plea, 2

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 voluntarybecause 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.

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pursue an appeal of the disqualification order. Therefore, by entering an 2

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. SaldrriagaPalacio 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.
6

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”). 
 The government asserts that, although Saldrriaga-Palacio asked the district court to sentence him 3

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

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.