### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30359 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. GEORGE CELESTINE, Defendant-Appellant

Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:06-CR-60059-1

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * George C elestine appeals the 120-month sentence imposed following his conditional guilty plea t o one count of conspiracy t o distribute cocaine and cocaine base. In h is plea agreement, Celestine r eserved the “right t o appeal as it r elates to Double J eopardy and the Speedy T rial Act.” On appeal, Celestine contends th a t t h e d i strict court erred in denying his motion to dismiss the indictment on the ground that his S ixth Amendment right to a s peedy trial had been violated. The Government has filed a motion to dismiss Celestine’s appeal U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 22, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-30359 Document: 00512216510 Page: 1 Date Filed: 04/22/2013No. 12-30359

on the ground that the Sixth Amendment issue w as no t p reserved for appeal, and thus, waived b y Celestine’s guilty plea. C e l e stine opposes the motion to dismiss. A voluntary and unconditional guilty plea waives an appellant’s right to challenge a n y n o nj u risdictional defects, such as a speedy trial claim, in the proceedings leading to a c onviction. United States v. Bell, 9 66 F.2d 9 14, 915 (5th Cir. 1992). However, by entering into a “conditional plea” pursuant t o Federal Rule o f C riminal Procedure 11(a)(2), like C elestine’s plea in the instant matter,

a defendant may p reserve the right t o appeal a n adv e r s e r u l ing on a pretrial motion. A conditional guilty plea must be made in w riting, be c onsented to by the Government, and be approved by the district court. Rule 11(a)(2). In the instant case, the reservation in C e lestine’s a greement was unambiguous and reserved o nl y claims relating to double jeopardy and the Speedy Trial Act. Celestine s u g g e s t s t hat, b ecause h e did not object to the magistrate judge’s report and recommendation regarding his claim pursuant to the Speedy Trial Act, it is illogica l t o c o nclude that he would preserve such a claim i n his agreement. However, Celestine’s suggestion fails to recognize that he did n ot object to the magistrate judge’s report and recommendation relating to his double jeopardy c laim, y et preserved such a claim i n h i s a g r eement. Furthermore, after the district court ruled on his motion to dismiss, but before C e l estine entered h is plea, Celestine filed another motion to dismis s t h e indictment e xclusively relying on the Speedy Trial Act. Thus, it is logical to conclude that Celestine intended to r e serve the right to appeal a claim pursuant to t h e Speedy Trial Act and that such a reservation was not a “careless oversight” on the part of trial counsel. C elestine’s valid guilty plea w aived his

s p e e d y trial claim pursuant to the Sixth Amendment because it was n o t preserved in the plea b argain and does not rise to the level o f a jurisdictional challenge. See Bell , 966 F.2d at 915. Accordingly, the judgment of the district

2 Case: 12-30359 Document: 00512216510 Page: 2 Date Filed: 04/22/2013No. 12-30359

court is AFFIRMED. The Government’s m otion to dismiss the appeal is DENIED.

3 Case: 12-30359 Document: 00512216510 Page: 3 Date Filed: 04/22/2013