IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40120

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 intentto 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 intentto distribute cocaine and marijuana, possession

United States Court of Appeals

Fifth Circuit

F I L E D

October 17, 2008

Charles R. Fulbruge III

Clerk
No. 08-40120

1 Much of the record of this case remains sealed, so we will refrain from naming this

cooperating witness.

2

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 allthree. 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.
No. 08-40120

3

Notwithstanding the foregoing, Guerrero pled guilty to the RICO charge

on August 14, 2007 pursuantto 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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4

(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 ofthe 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
No. 08-40120

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).

5

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 defendantthe rightto 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
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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; itinvolved 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 rightto 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
No. 08-40120

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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.
No. 08-40120

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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, itis 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 crossexamine Witness, and that he would notinform that attorney of any confidential
No. 08-40120

9

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.
No. 08-40120

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C. Sentencing

Guerrero contends thatthe 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 rightto 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 againstthe 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.