* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

August 23, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-11077

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO SERGIO DESANTIAGO,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:03-CR-424-1-M

--------------------

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
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

-3-

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.