                                                           [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                   FILED
                           ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                August 10, 2005
                                 No. 04-12513
                                                              THOMAS K. KAHN
                             Non-Argument Calendar                CLERK
                           ________________________

                       D. C. Docket No. 03-00095-CR-04-4

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

JEREMY RAY SIMS,
                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________

                                 (August 10, 2005)

Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

      Jeremy Ray Sims appeals his conviction and sentence, pursuant to a guilty

plea, for conspiracy against rights, in violation of 18 U.S.C. § 241. Sims argues

that his guilty plea and sentence should be vacated because his attorney was
operating under an impermissible conflict of interest, in violation of the Sixth

Amendment, by simultaneously representing Sims and two of his co-defendants.

Sims also argues that the district court: (1) committed plain error by enhancing his

sentence, based on facts that were not charged in the indictment, proved to a jury,

or stipulated to by him, in violation of Blakely v. Washington, 542 U.S. ___, 124

S. Ct. 2531 (2004), and United States v. Booker, 543 U.S. ___, 125 S. Ct. 738

(2005); and (2) erred by granting an enhancement pursuant to U.S.S.G. § 3B1.1 for

aggravating role. The government moves to dismiss Sims’s appeal of his sentence

because he validly waived his right to appeal. Because the record shows that Sims

knowingly and voluntarily waived his right to appeal his sentence, we grant the

government’s motion as to Sims’s sentencing issues. We deny the motion as to his

counsel’s conflict of interest claim but, because the record shows that Sims

knowingly and intelligently waived his right to conflict-free counsel, affirm his

conviction.

                                 I. BACKGROUND

      Sims and five co-defendants were indicted for: (1) conspiracy to injure,

oppress, threaten and intimidate three individuals in the free exercise of their right

to hold and occupy a dwelling without injury, intimidation, or interference because

of race, in violation of 18 U.S.C. § 241 (Count 1); and (2) by force and threat of



                                           2
force, and by use of fire, willfully injuring, intimidating, and interfering with the

same individuals in their occupation of a dwelling, on account of their race, in

violation of 18 U.S.C. § 2 and 42 U.S.C. § 3631(b) (Count 2). Specifically, the

indictment charged that the plan of the conspiracy was “to erect and ignite a cross

in the visible vicinity of the victims’ dwelling in order to intimidate, prevent, and

discourage the victims from exercising their protected rights.” R1-1 at 1-2.

      During Sims’s initial appearance and arraignment, Sims’s retained attorney,

Allen Townsend, identified himself to the court and stated that he represented Sims

and two of his co-defendants. R2 at 2, 4. The magistrate judge addressed the

issues regarding the representation of multiple clients by one attorney and conflicts

of interest. Id. at 4-5, 19-21. He told Sims and his co-defendants that they each

had “a right to be represented by a lawyer . . . [who did not] have . . . a conflict of

interest . . . [and] whose loyalty is to you and not compromised by any

representation of any other person.” Id. at 19. The magistrate judge then

explained some potential problems that could occur when a lawyer had a conflict,

including specifically advising that such a conflict could “prevent the lawyer from

arguing the relevant culpability of the defendants to the sentencing court.” Id. at

21. The magistrate judge then individually addressed Sims and each of his co-

defendants who were represented by Townsend, and inquired whether Townsend



                                            3
had explained to them the potential conflict of interests and they each responded

“yes.” Id. at 2, 24. Sims indicated that Townsend told him “if there was a conflict

of interest, he couldn’t represent all three of us.” Id. The magistrate judge asked

Sims whether he understood (1) that he had a right to his own separate attorney, (2)

how conflicts can arise, and (3) the potential for conflicts of interest, and Sims

stated that he understood. Sims then indicated, with yes and no answers, that he:

(1) did not want his own attorney to represent him; (2) wanted to be represented by

Townsend despite the potential for conflicts of interest; (3) was waiving his right to

a separate attorney; and (4) understood that he might “be giving up [his] claim on

appeal that [his] lawyer was ineffective . . . because he had a conflict of interest.”

Id. at 25-26. The magistrate judge then approved the multiple representation,

finding that there was no reason to believe that a conflict would arise. Id. at 26.

Sims subsequently signed a written “waiver of right to conflict-free counsel,” in

which he acknowledged that he had:

      been told that . . . I have the right to [be] represented by a lawyer who
      does not have any conflict of interest.
      ....
            The possible problems that can occur when a lawyer has
      a conflict of interest have been explained to me by the Court
      and my lawyer.
            These problems include, . . . :
       ....
            (2) The government could view my role and that of the other
            person represented by my lawyer differently.

                                        4
      ....
              (4) Representing two persons in the same case or controversy
              may prevent the lawyer from arguing the relative culpability of
              the defendants to the sentencing court.
       ....
             I voluntarily and knowingly give up my right to have a
      different lawyer appointed to represent me . . . .
             I further understand that by giving up my right to have
      different, separate counsel to represent me in this case, I also
      may be giving up the right to claim on appeal . . . that my
      lawyer did not provide effective assistance of counsel because
      he/she . . . had a conflict of interest.

R1-13 at 1-4.

      Sims entered into a negotiated plea agreement in which he agreed to plead

guilty to Count 1 of the indictment in exchange for the government’s agreement to

dismiss Count 2. The plea agreement included a sentence-waiver provision that

provided in pertinent part:

      To the maximum extent permitted by federal law, the defendant
      voluntarily and expressly waives the right to appeal his sentence and
      the right to collaterally attack his sentence in any post-conviction
      proceeding on any ground, except that the defendant may file a direct
      appeal of (a) an upward departure from the otherwise applicable
      guideline range and (b) a finding by the court that § 2K1.4(a)(1) of the
      Sentencing Guidelines applies to the defendant’s offense conduct.

R1-28, Plea Agreement at 2. The plea agreement also contained a certification,

signed by Sims, which stated that he understood:

      . . . the terms and conditions contained in the Plea Agreement, and I
      voluntarily agree to them. I also have discussed with my attorney the
      rights I may have to appeal or challenge my sentence, and I

                                       5
       understand that the appeal waiver contained in the Plea Agreement
       will prevent me, with the narrow exceptions stated, from appealing
       my sentence or challenging my sentence in any post-conviction
       proceeding.

Id. at 7.

       At the plea hearing, Sims indicated that he (1) had discussed the plea

agreement with his lawyer, (2) had signed it, and (3) understood that, by signing it,

he was entering a guilty plea to Count 1 of the indictment. Sims also answered

affirmatively when asked by the district judge if he still wanted to proceed with

Townsend as his counsel and whether he understood that he had a right to separate

counsel, and Sims said “Yes.” R3 at 6-7. The district court ensured that no one

had coerced Sims to tender the guilty plea, and read the plea agreement and Sims’s

certification into the record. Sims also affirmatively responded to the district

judge’s inquiry as to whether it was Sims’s understanding that the plea agreement

read into the record was the complete agreement and whether he was satisfied with

it. The district court informed Sims that he had a right to appeal to a higher court

without cost but that, by entering the plea agreement, was waiving his right to

appeal except as to the issues listed in the agreement. When asked whether that

was what he wanted to do and whether his plea was free and voluntary, Sims

replied “Yes, sir.” Id. at 41-42. After observing that Sims was not under the

influence of any drugs or substances that may have effected his plea, the district

                                          6
court accepted his guilty plea as to Count 1.

       According to the Presentence Investigation Report (‘PSI”), at some point

during the evening of 4 November 2003, Sims and his five co-defendants

congregated at Sims’s residence and began consuming alcoholic beverages. The

conversation turned to a racially-mixed couple who was visiting the area, and the

defendants agreed to construct a cross to be placed at the residence where the

couple was staying and set ablaze. The defendants obtained lumber, and Sims

constructed the cross, which they shrouded with cloth and doused in transmission

fluid. The group then (1) put the cross in Sims’s truck, (2) drove to the residence,

(3) unloaded the cross at the end of the driveway, and (4) set it on fire. Later,

three co-defendants returned to the scene of the crime, and, finding that the cross

was not lit, successfully lit the cross and returned to Sims’s residence. In an effort

to attract attention to the burning cross, another co-defendant reported the incident

to the police.

       The probation officer set Sims’s base offense level at 16, pursuant to

U.S.S.G. § 2H1.1(a)(1), cross-referenced to § 2K1.4(a)(3),1 which specifies that

the offense level is 2, plus the offense level determined according to § 2B1.1,




       1
        The guideline for a violation of 18 U.S.C. § 241 is § 2H1.1(a)(1), which cross-references
the guideline for the underlying offense, arson, which is § 2K1.4(a)(3).

                                               7
which was 14.2 The probation officer then increased this level: (1) by 3, pursuant

to § 3A1.1(a), since the victims were selected because of their race; and (2) by 4,

pursuant to § 3B1.1(a), since Sims was in a leadership role. Based on a total

offense level of 23, and with a criminal history category of I, Sims’s presumptive

guideline range of imprisonment was 46-57 months.

       Sims objected to the § 3B1.1(a) role enhancement. At the sentencing

hearing, at which Sims alone was sentenced, Townsend argued that the four-point

enhancement for a leadership role was unfair because: (1) Sims was not the leader,

organizer, or supervisor of the incident; (2) it was a joint enterprise with at least

four participants, two of whom arrived later; and (3) it was just circumstance that

the incident involved Sims’s residence and truck. The government responded that

a role enhancement was appropriate because Sims picked up two of his co-

defendants, facilitated the creation of the cross at his residence, drove the truck and

his co-defendants to the victims’s residence, and instructed a co-defendant to come

up with a story to tell the police. The court sustained Sims’s objection to the four-

level enhancement, but applied a two-level enhancement, finding that Sims

“exercised some management responsibility” regarding the incident. R5 at 23-24.



       2
        Pursuant to § 2B1.1(a)(2), Sims’s base offense level was 6, but because the offense involved
the conscious or reckless risk of death or bodily injury, pursuant to § 2B1.1(b)(11)(A), the resulting
offense level was 14.

                                                  8
Sims was then sentenced to 46 months of imprisonment, and 3 years of supervised

release.

                                  II. DISCUSSION

A. Waiver of Right to Appeal

      After Sims had filed his initial brief on appeal, the government moved to

dismiss the appeal, arguing that Sims validly waived his right to appeal and had

raised no issues on appeal excepted from the waiver. Sims responded that, at the

time when he entered his guilty plea, he was operating under an actual conflict of

interest which made both the plea agreement and the appeal waiver invalid.

      We review de novo the legal question of whether a defendant knowingly and

voluntarily waived his right to appeal his sentence. United States v. Bushert, 997

F.2d 1343, 1352 (11th Cir. 1993). Plea agreements and accompanying waivers are

permissible and, indeed, are “important components” in our criminal justice

system. Id. at 1347 (internal citation omitted). An effective appeal waiver must

be made knowingly and voluntarily. Id. at 1350. Therefore, “for a sentence-appeal

waiver to be enforceable, [t]he government must show that either (1) the district

court specifically questioned the defendant concerning the sentence appeal waiver

during the [plea] colloquy, or (2) it is manifestly clear from the record that the

defendant otherwise understood the full significance of the waiver.” Williams v.



                                           9
United States, 396 F.3d 1340, 1341 (11th Cir. 2005) (internal quotations and

citation omitted). Specifically, we have also held that “the right to appeal a

sentence based on Apprendi /Booker grounds can be waived in a plea agreement.

Broad waiver language covers those grounds of appeal.” United States v. Rubbo,

396 F.3d 1330, 1335 (11th Cir. 2005).

      Sims’s plea agreement contained a broad sentence-appeal waiver, stating

that: “the defendant voluntarily and expressly waives the right to appeal his

sentence and the right to collaterally attack his sentence in any post conviction

proceeding on any ground.” See R1-28, plea agreement at 2. Although Sims

reserved the right to appeal his sentence for (1) “an upward departure from the

otherwise applicable guideline range” and (2) a finding by the sentencing court that

U.S.S.G. § 2K1.4(a)(1) applies to his offense conduct, he did raise issues regarding

either of these exceptions on appeal. See id.; see generally Sims’s brief. The

waiver uses broad, sweeping language, and there is no indication that the parties

intended to except an argument based on Booker. See Rubbo, 396 F.3d at 1335.

      The record shows that, during the change-of-plea hearing, the court read the

plea agreement into the record and Sims indicated that he was satisfied with it.

The court informed Sims that he had a right to appeal without any cost to him, but

that, by entering the plea agreement, he was waiving his right to appeal, and Sims



                                          10
stated that that was what he wished to do. Sims specifically swore that his plea

was entirely free and voluntary, and he signed a statement that he understood he

was waiving his right to appeal his sentence. Because Sims’s sentence-appeal

waiver was knowingly and intelligently made, he waived his arguments that: (1)

his sentence was unconstitutionally enhanced based on facts not charged in the

indictment, admitted by Sims, or proven to a jury, in violation of Blakely and

Booker; and (2) the district court erred by enhancing his sentence based on his role

in the offense.

      However, it is possible that Sims has not waived his right to raise on direct

appeal that his counsel was ineffective for operating under an impermissible

conflict of interest because the terms of the sentence-appeal waiver do not mention

or cover such a claim, which goes to Sims’s conviction. See R1-28. The Supreme

Court has stated that, in most cases, it is preferable to decide an ineffective

assistance of counsel claim through a 28 U.S.C. § 2255 motion to vacate instead of

a direct appeal. Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690,

1694 (2003). However, we will review an ineffective assistance of counsel claim

on direct appeal if the record is sufficiently developed. United States v. Bender,

290 F.3d 1279, 1284 (11th Cir. 2002). Because the record regarding Sims’s

ineffective assistance claim is sufficiently developed, we grant the government’s



                                           11
motion to dismiss in part as to the sentencing issues that Sims raises, and deny in

part as to Sims’s ineffective assistance of counsel claim.

B.   Waiver of the right to conflict-free counsel

      On appeal, Sims argues that his guilty plea and sentence should be vacated

because his attorney was operating under an impermissible conflict of interest, in

violation of the Sixth Amendment, since his counsel simultaneously represented

Sims and two of his co-defendants. He contends that, while he was initially

advised of his right to conflict-free counsel, his waiver was inadequate because the

issue was not revisited by the district court when, during sentencing, the potential

conflict became an actual conflict. He avers that an actual conflict of interest

existed at sentencing because the PSI recommended that Sims’s sentence be

enhanced based on his alleged role as a leader, while his co-defendant, Stacy Jones,

another of Townsend’s clients, was not facing such a role enhancement. He

contends that a defense to such an enhancement would have demanded that his

attorney harm Jones by highlighting Jones’s aggravating role. Sims maintains that

his appeal is analogous to United States v. Swartz, 975 F.2d 1042 (4th Cir. 1992),

in which the defendant’s conviction was reversed where, although the defendant

had waived her right to conflict-free counsel during the initial proceedings, such

waiver was inadequate when an actual conflict developed at sentencing. Sims



                                          12
argues that his waiver of conflict-free counsel was not knowing or intelligent

because: (1) the court should have engaged Sims, who had limited education,

more to ensure that he truly understood what he was waiving; and (2) his answers

to the asked questions do not demonstrate an understanding of the nature of the

conflict.

       We review de novo the mixed questions of fact and law regarding conflicts

of interest. United States v. Jones, 52 F.3d 924, 925 (11th Cir. 1995). “A criminal

defendant's right to effective assistance of counsel is violated where the defendant's

attorney has an actual conflict of interest that affects the defendant adversely.”

United States v. Rodriguez, 982 F.2d 474, 477 (11th Cir. 1993) (per curiam).

“Although a defendant may waive his right to the assistance of an attorney

unhindered by a conflict of interests, such waivers are not to be lightly or casually

inferred and must be knowingly and intelligently made.” United States v. Alred,

144 F.3d 1405, 1411 (11th Cir. 1998) (internal quotations and citations omitted).

For a waiver to be knowing and intelligent, “[t]he record must show that the

defendant was aware of the conflict of interest; realized the conflict could affect the

defense; and knew of the right to obtain other counsel.” Id. (internal quotations

and citation omitted). “A determination that defendants have waived the right to

conflict-free counsel disposes of the need to evaluate the actual or potential



                                           13
ineffectiveness of counsel caused by the alleged conflicts of interest.” Rodriguez,

982 F.2d at 477.

      The district court did not err by accepting Sims’s plea or sentencing him

despite his attorney’s simultaneous representation of Sims and two of his co-

defendants because Sims knowingly and intelligently waived his right to conflict-

free counsel. The magistrate judge: (1) informed Sims of his right to a lawyer

without conflicts; (2) explained that one of the problems with having a conflicted

attorney would be that the attorney may be prevented from arguing relevant

culpability to the sentencing court; (3) addressed Sims personally and elicited a

statement from him; and (4) ensured that Sims understood. Sims indicated that:

(1) he wished to be represented by Townsend in spite of any conflicts; (2) was

waiving his right to a separate attorney; and (3) understood that he may be giving

up his right to claim on appeal that his attorney was ineffective because of the

conflict. Additionally, Sims: (1) certified that he was “fully satisfied with the

representation provided” to him by his attorney; (2) signed a written waiver of his

right to conflict-free counsel, which acknowledged that his lawyer’s conflict could

prevent him from arguing relative culpability at sentencing; and (3) during the

change-of-plea hearing, reaffirmed his intent to proceed with Townsend as his

attorney despite his right to his own counsel. See R1-13, 28, plea agreement at 7;



                                          14
R3 at 6-7.

      The record unequivocally shows that Sims (1) was aware of the conflict, and

(2) knew of his right to obtain counsel. See Alred, 144 F.3d at 1411. Additionally,

not only did Sims realize that the conflict of interest could affect his defense, he

specifically was told, and signed a waiver that acknowledged that his counsel

might be unable to argue relative culpability at sentencing, the exact claim that he

is making on appeal. See id; see also R1-13. The very terms of his waiver belie

his argument that he did not knowingly and intelligently waive a challenge to his

attorney’s alleged conflict in arguing role enhancements.

      Because Sims waived his right to conflict-free counsel, we need not evaluate

the actual or potential ineffectiveness of counsel caused by the alleged conflict.

See Rodriguez, 982 F.2d at 477. Nevertheless, even assuming that Sims’s waiver

was ineffective, there is no evidence that an actual conflict arose at sentencing

because Townsend: (1) objected to the probation officer’s recommendation

regarding the role enhancement; (2) argued that Sims was not the leader of the

group; and (3) obtained a two-level reduction in the enhancement from the

sentencing court. See R5 at 19-21.

                                III. CONCLUSION

      We grant the government’s motion to dismiss in part because the record



                                           15
shows that Sims knowingly and voluntarily waived his right to appeal his sentence,

including any arguments related to the district court’s enhancement of his sentence

based on his role in the offense or based on an unconstitutional enhancement under

Booker. We deny the government’s motion to dismiss in part because Sims’s

conflict of interest argument was not specifically covered by his appeal waiver but

affirm his conviction because the record shows that Sims knowingly and

intelligently waived his right to conflict-free counsel.

      DISMISSED IN PART; AFFIRMED IN PART.




                                           16
