US v. Vincent Boulware

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00082-MR-1 Copies to all parties and the district court/agency. [998612267].. [10-4794, 10-4795, 10-4796]

Appeal: 10-4794

Document: 51

Date Filed: 06/15/2011

Page: 1 of 5

UNPUBLISHED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.

Appeal: 10-4794

Document: 51

Date Filed: 06/15/2011

Page: 2 of 5

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Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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

Appeal: 10-4794

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Date Filed: 06/15/2011

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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

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Date Filed: 06/15/2011

Page: 4 of 5

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

Appeal: 10-4794

Document: 51

adequately

Date Filed: 06/15/2011

presented

in

the

Page: 5 of 5

materials

before

the

court

and

argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART

5