US v. Vincent Boulware, No. 10-4794 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4794 UNITED STATES OF AMERICA, Plaintiff Appellee, v. VINCENT LAMAR BOULWARE, Defendant Appellant. No. 10-4795 UNITED STATES OF AMERICA, Plaintiff Appellee, v. VINCENT LAMAR BOULWARE, Defendant Appellant. No. 10-4796 UNITED STATES OF AMERICA, Plaintiff Appellee, v. VINCENT LAMAR BOULWARE, Defendant Appellant. Appeals from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:08-cr-00082-MR-1; 1:09-cr-00055-MR-2; 1:09cr-00058-MR-3) Submitted: June 3, 2011 Decided: June 15, 2011 Before DUNCAN, DAVIS, and DIAZ, Circuit Judges. Affirmed in part; dismissed in part by unpublished per curiam opinion. Aaron E. Michel, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Richard Lee Edwards, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Vincent Lamar Boulware pleaded guilty, pursuant to a written plea agreement, to 18 § violation of U.S.C. sentenced Boulware to three 2113 188 counts of (2006). months bank The robbery, district imprisonment. in court Boulware appeals his sentence and argues on appeal that his sentence was procedurally and substantively unreasonable and that his trial counsel provided ineffective assistance. Relying on the waiver of appellate rights in Boulware s plea agreement, the Government urges the dismissal of this appeal. We dismiss in part and affirm in part. A defendant may waive the waiver is knowing and intelligent. 492 F.3d 263, 270 (4th Cir. 2007). right to appeal if that United States v. Poindexter, Generally, if the district court fully questions a defendant regarding the waiver of his right to appeal during a plea colloquy performed in accordance with Fed. R. enforceable. Crim. P. 11, the waiver is both valid and See United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). The question of whether a defendant validly waived his right to appeal is a question of law that this court reviews de novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). After reviewing the record, we conclude that Boulware knowingly and voluntarily waived 3 the right to appeal his conviction and sentence, except based on claims of ineffective assistance of counsel or prosecutorial misconduct, and that the magistrate judge fully questioned Boulware regarding the appeal waiver at the Fed. R. Crim. P. 11 hearings. Accordingly, the waiver is valid. Because substantive Boulware s reasonableness challenges of his to the sentence procedural fall within and the waiver s scope, we grant the Government s request in part and dismiss this preserved portion the right of to the appeal. appeal on Boulware, however, the basis of ineffective Boulware s claim of ineffective assistance of counsel. Turning, then, to assistance of counsel, we conclude that such a claim is more appropriately raised in a motion filed pursuant to 28 U.S.C.A. § 2255 (West conclusively Supp. appears 2010), on the unless counsel s record. See ineffectiveness United Richardson, 195 F.3d 192, 198 (4th Cir. 1999). States v. Because we find no conclusive evidence on the face of the present record that trial counsel rendered ineffective assistance, we decline to address the merits of this claim on direct appeal. Accordingly, we affirm the judgment of the district court in part and dismiss the appeal in part. We dispense with oral contentions argument because the facts 4 and legal are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 5
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