US v. Michael Boswell

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00606-JFM-1. Copies to all parties and the district court. [999571860].. [14-7107]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7107

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL DARNELL BOSWELL,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:13-cr-00606-JFM-1)

Submitted:

April 23, 2015

Decided: April 27, 2015

Before SHEDD, DUNCAN, and THACKER, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam
opinion.

William A. Mitchell, Jr., Brennan McKenna Chartered, Greenbelt,
Maryland, for Appellant.
Ayn Brigoli Ducao, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael

Darnell

Boswell

pled

guilty

agreement

to

interstate

transportation

violation

of

18

§§

U.S.C.

2,

2421

pursuant

for

to

a

prostitution,

(2012).

The

R.

Crim.

Boswell’s

P.

guilty

11(c)(1)(C).
plea

The

pursuant

to

district
the

plea

court

in

parties

stipulated in the plea agreement to a 46–month sentence.
Fed.

plea

See

accepted

agreement

and

sentenced him to 46 months’ imprisonment.
On appeal, Boswell’s counsel has filed a brief pursuant to
Anders

v.

California,

386

U.S.

738

(1967),

questioning

the

validity of the appellate waiver in Boswell’s plea agreement,
the

application

of

certain

Guidelines

enhancements,

and

the

adequacy of the district court’s consideration of the 18 U.S.C.
§ 3553(a)

(2012)

factors.

Boswell

has

filed

a

pro

se

supplemental brief raising similar challenges as well as several
claims of ineffective assistance of counsel.
declined to file a response.

The Government

We affirm in part and dismiss in

part.
Where, as here, a defendant has not moved in the district
court to withdraw his guilty plea, we review his plea hearing
for plain error.

United States v. Martinez, 277 F.3d 517, 525

(4th Cir. 2002).

To prevail under this standard, Boswell must

establish “that an error occurred, that the error was plain, and
that

the

error

affected

his
2

substantial

rights.”

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United

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States v. Heyer, 740 F.3d 284, 290 (4th Cir. 2014).

Our

review of the record confirms that the district court complied
with

the

mandates

of

Rule

11,

ensuring

that

Boswell

was

competent to plead guilty and that his guilty plea was knowing,
voluntary, and supported by an independent basis in fact.

We

therefore affirm Boswell’s convictions. *
Further, we conclude that we lack jurisdiction to review
Boswell’s
review

sentence.

of

a

The

sentence,

see

federal
18

statute

U.S.C.

§

governing
3742(a),

appellate

(c)

(2012),

limits the circumstances under which a defendant may appeal a
stipulated

sentence

in

a

Rule

11(c)(1)(C)

plea

agreement

to

claims that his sentence was imposed in violation of the law or
as a result of an erroneous application of the Guidelines, or
that it exceeds the sentence set forth in the plea agreement.
United States v. Calderon, 428 F.3d 928, 932 (10th Cir. 2005).
None of the exceptions apply here.

Boswell’s sentence was less

than the applicable statutory maximum and the sentence was not
imposed

as

a

result

of

an

incorrect

*

application

of

the

We need not address Boswell’s challenge to the appellate
waiver, as the Government has not sought to enforce the waiver,
and we decline to enforce appellate waivers sua sponte.
See
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005); see
also United States v. Poindexter, 492 F.3d 263, 271 (4th Cir.
2007) (recognizing that, in Anders appeal with appellate waiver,
Government’s failure to respond “allow[s] this court to perform
the required Anders review”).

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Sentencing

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Guidelines

agreement—not
Guidelines.

on

the

because

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it

district

was

based

court’s

on

the

calculation

parties’
of

the

See United States v. Brown, 653 F.3d 337, 339–40

(4th Cir. 2011); United States v. Cieslowski, 410 F.3d 353, 364
(7th Cir. 2005).

Finally, 46 months is the exact sentence set

forth in the plea agreement.

Accordingly, review of Boswell’s

sentence is precluded by § 3742(c)(1).
In accordance with Anders, we have reviewed the remainder
of the record in this case and Boswell’s supplemental brief and
have found no meritorious issues for appeal.

We decline to

reach Boswell’s ineffective assistance of counsel claims in this
appeal.

Unless

an

attorney’s

ineffectiveness

conclusively

appears on the face of the record, ineffective assistance claims
are not generally addressed on direct appeal. United States v.
Benton, 523 F.3d 424, 435 (4th Cir. 2008). Instead, such claims
should be raised in a motion brought pursuant to 28 U.S.C. §
2255 (2012), in order to permit sufficient development of the
record.
Cir.

United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th

2010).

Because

there

is

no

conclusive

evidence

of

ineffective assistance of counsel on the face of the record, we
conclude these claims should be raised, if at all, in a § 2255
motion.
We therefore affirm Boswell’s conviction and dismiss the
appeal of his sentence.

This court requires that counsel inform
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Boswell, in writing, of the right to petition the Supreme Court
of the United States for further review. If Boswell requests
that

a

petition

be

filed,

but

counsel

believes

that

such

a

petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation.
must

state

dispense

that

with

contentions

are

a
oral

copy

thereof

argument

adequately

was

served

because

presented

in

the
the

Counsel’s motion
on

Boswell.

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED IN PART;
DISMISSED IN PART

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