           Case: 11-15609   Date Filed: 02/08/2013   Page: 1 of 9

                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-15609
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:10-cr-00273-WS-C-2



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                         versus

TIMOTHY WAYNE SEABURY,

                                                         Defendant-Appellant.
                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                            (February 8, 2013)

Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 11-15609     Date Filed: 02/08/2013    Page: 2 of 9

      Appellant Timothy Wayne Seabury appeals his convictions and total life

sentence after a jury trial for conspiracy to possess with intent to distribute crack

cocaine, conspiracy to possess with intent to distribute methamphetamine,

conspiracy to manufacture methamphetamine, and attempt to manufacture

methamphetamine, all in violation of 21 U.S.C. § 846.

      On appeal, Seabury raises three issues. First, he argues for the first time

that the district court abused its discretion in excluding his testimony, because it

was not offered for the truth of the matter asserted, and the testimony of defense

witness Billy Nelson, because it was admissible under the “residual” hearsay

exception in Fed.R.Evid. 807. He also argues for the first time that excluding his

and Nelson’s testimony violated his right to a fair trial and prevented him from

presenting a defense. Second, he argues that the district court abused its discretion

in disqualifying his counsel of choice because no actual or serious potential for

conflict existed, and the court ignored available alternatives to disqualification.

Third, he argues for the first time that the district court erred in deviating from the

Sentencing Guidelines “without explanation” by sentencing him to a term of life

imprisonment. For the reasons that follow, we affirm.

                       I. The Excluded Testimony at Trial




                                           2
              Case: 11-15609     Date Filed: 02/08/2013    Page: 3 of 9

      When an appellant does not contemporaneously object to an evidentiary

ruling in the district court, we are limited to review for plain error. United States

v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). Similarly, when the proper basis

for admission is not presented to the district court, we review the district court’s

evidentiary ruling for plain error only. United States v. King, 73 F.3d 1564, 1571-

72 (11th Cir. 1996). We have held that an error is not plain when the basis for

admission of excluded evidence was not raised at trial. Id. at 1572 (addressing

Federal Rule of Evicence 806 and explaining that to apply the plain error

exception to the contemporaneous objection rule when trial counsel had an

opportunity to assert the basis for admission would lead to “the exception

swallowing the rule”).

      The district court does not have discretion to exclude crucial, relevant

evidence that is necessary to establish a valid defense. United States v. Todd, 108

F.3d 1329, 1332 (11th Cir. 1997). However, a defendant is still required to

comply with established rules of procedure and evidence when presenting a full

and complete defense. United States v. Anderson, 872 F.2d 1508, 1519 (11th Cir.

1989).

      Rule 801(c) defines hearsay as a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

                                           3
                Case: 11-15609    Date Filed: 02/08/2013    Page: 4 of 9

truth of the matter asserted. Fed. R. Evid. 801(c). Thus, if an out-of-court

statement is offered for some purpose other than to prove the truth of the matter

asserted, it is not hearsay. E.g., United States v. Parry, 649 F.2d 292, 295 (5th Cir.

Unit B 1981).

      Pursuant to Rule 807, “a hearsay statement is not excluded by the rule

against hearsay even if the statement is not specifically covered by a hearsay

exception” if: (1) the statement has “equivalent circumstantial guarantees of

trustworthiness”; (2) it is “offered as evidence of material fact”; (3) it is “more

probative on the point for which it is offered than any other evidence that the

proponent can obtain through reasonable efforts”; and (4) “admitting it will best

serve the purposes of these rules and the interests of justice.” Fed. R. Evid. 807.

      As noted above, we have held specifically that an error is not plain when the

basis for admission of excluded evidence was not raised at trial. King, 73 F.3d at

1572. Here, counsel had an opportunity to argue that Seabury’s testimony was

admissible because it was not offered to prove the truth of the matter asserted, but

he did not. Thus, because this argument—that the testimony should be admitted

because it was not hearsay—was not asserted as a basis for admission, any error

by the district court in this respect was not plain. Similarly, counsel also had an

opportunity to argue that Nelson’s testimony was admissible under Rule 807, but

                                           4
              Case: 11-15609     Date Filed: 02/08/2013    Page: 5 of 9

he did not, so any error by the district court in failing to admit Nelson’s testimony

under this rule was not plain. Id.

      Finally, regardless of the excluded testimony, Seabury was able, through the

rest of his testimony, to present a valid defense. As a result, we conclude that his

right to a fair trial was not violated, nor was he prevented from presenting his

defense. Todd, 108 F.3d at 1332. Accordingly, we affirm as to this issue.

                         II. Disqualification of Counsel

      “A trial court’s decision to disqualify the defendant’s counsel is reviewed

for abuse of discretion.” United States v. Campbell, 491 F.3d 1306, 1310 (11th

Cir. 2007) (internal quotation marks omitted). In applying the abuse of discretion

standard, we recognize that a district court has a “a range of choice, and so long as

its decision does not amount to a clear error of judgment” we “will not reverse

even if we would have gone the other way had the choice been ours to make.” Id.

(internal quotation marks, alterations, and ellipsis omitted).

      The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the

accused shall enjoy the right [] to have the Assistance of Counsel for his defence.”

U.S. Const. amend. VI. “[A]n essential part of that right is the accused’s ability to

select the counsel of his choice.” United States v. Ross, 33 F.3d 1507, 1522 (11th

Cir. 1994). “Thus, a criminal defendant has a presumptive right to counsel of

                                          5
               Case: 11-15609     Date Filed: 02/08/2013    Page: 6 of 9

choice.” Id. at 1522-23. Nevertheless, “while the right to be represented by one’s

preferred attorney is comprehended by the Sixth Amendment, the essential aim of

the Amendment is to guarantee an effective advocate for each criminal defendant

rather than to ensure that a defendant will inexorably be represented by the lawyer

whom he prefers.” Campbell, 491 F.3d at 1310 (quotation and ellipsis omitted).

Thus, a defendant’s right to the counsel of his choice is not absolute. Id.

      “The need for fair, efficient, and orderly administration of justice overcomes

the right to counsel of choice where an attorney has an actual conflict of interest,

such as when he has previously represented a person who will be called as a

witness against a current client at a criminal trial.” Ross, 33 F.3d at 1523. When

there exists an actual conflict of interest, “the client is denied effective assistance

of counsel, and the attorney may be disqualified.” Id. Disqualification may be

warranted with a potential conflict. “Furthermore, if one attorney in a firm has an

actual conflict of interest, we impute that conflict to all the attorneys in the firm,

subjecting the entire firm to disqualification.” Id.

      In deciding whether a conflict warrants disqualification, we “examine

whether the subject matter of the first representation is substantially related to that

of the second.” Id. “Our goal is to discover whether the defense lawyer has

divided loyalties that prevent him from effectively representing the defendant.”

                                           6
               Case: 11-15609     Date Filed: 02/08/2013    Page: 7 of 9

Id. If the conflict “could deter the defense attorney from intense probing of the

witness on cross-examination,” then disqualification is appropriate. Id.

      Based upon our review of the record, we conclude that the district court

correctly determined that there was an actual conflict of interest with regard to

Seabury’s appointed counsel of choice. As a result, the district court did not abuse

its discretion in disqualifying counsel based on that conflict. See Ross, 33 F.3d

1523. Nor did it abuse its discretion in determining that counsel should be

disqualified, despite Seabury’s waiver of the conflict, based on the “nature” and

“extent of [the] conflict.” See id. at 1524 (holding that the district court did not

abuse its discretion by refusing to accept the defendant’s waiver of his right to

conflict-free representation where the court was “confronted with several actual or

potential conflicts of interest,” which, if recognized, “would have rendered the

court’s verdict suspect and the [defendant’s] assistance of counsel unethical and

ineffective”). Accordingly, we affirm as to this issue.

     III. Procedural Reasonableness of Seabury’s Total Life Sentence

      We review the reasonableness of sentences imposed under the advisory

Sentencing Guidelines under a deferential abuse of discretion standard. Gall v.

United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007).

      When reviewing the reasonableness of a sentence, we will first ensure “that

                                           7
               Case: 11-15609     Date Filed: 02/08/2013     Page: 8 of 9

the district court committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the chosen sentence.”

Gall, 552 U.S. at 51, 128 S. Ct. at 597. Pursuant to § 3553(c)(1), the district court,

at the time of sentencing, “shall state in open court the reasons for its imposition

of the particular sentence, and, if the sentence . . . is of the kind, and within the

[guidelines] range . . . and that range exceeds 24 months, the reason for imposing a

sentence at a particular point within the range.” 18 U.S.C. § 3553(c)(1).

      The Supreme Court has held that, to comply with § 3553(c)’s requirement

of a statement of reasons, “[t]he sentencing judge should set forth enough to

satisfy the appellate court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.” Rita v.

United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468, 168 L. Ed. 2d. 203

(2007). A reflection in the record that the district court considered the objections

and arguments of the parties and stated reasons for the sentence imposed can

demonstrate that the court considered the § 3553(a) factors. See United States v.

Dorman, 488 F.3d 936, 944 (11th Cir. 2007). The appellant has the burden of

establishing that the sentence is unreasonable in light of the record and the

                                            8
                 Case: 11-15609   Date Filed: 02/08/2013   Page: 9 of 9

§ 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      Contrary to Seabury’s assertion, we conclude from the record that the

district court did not depart from the guideline range, which was life

imprisonment, and it explained sufficiently the reason for the sentence

imposed—it was the statutory mandatory total sentence. Moreover, the district

court considered the arguments of the parties, and it stated specifically that the

sentence imposed satisfied the objectives set forth in § 3553(a). As a result,

Seabury has not met his burden of showing that his within-guideline-range total

sentence of life imprisonment was procedurally unreasonable, so we affirm as to

this issue. See Talley, 431 F.3d at 788; Rita, 551 U.S. at 356, 127 S.Ct. at 2468;

Dorman, 488 F.3d at 944.

      For the aforementioned reasons, we affirm Seabury’s convictions and total

life sentence.

      AFFIRMED.




                                          9
