United States v. Boston ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4333
ALAN BERNARD BOSTON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4779
ALAN BERNARD BOSTON,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-98-733)
Submitted: April 25, 2000
Decided: August 7, 2000
Before MURNAGHAN, NIEMEYER, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Thomas P. Gressette, Jr., Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Alfred William Walker Bethea, Assis-
tant United States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In these consolidated cases, Alan B. Boston appeals his sentence
imposed pursuant to a guilty plea for conspiracy to distribute crack
cocaine in violation of 21 U.S.C.A. §§ 841(a), 846 (West 1999). Bos-
ton's attorney has filed a brief in accordance with Anders v. Califor-
nia, 386 U.S. 738 (1967), questioning whether the district court failed
to comply with Rule 11 of the Federal Rules of Criminal Procedure
during the plea colloquy and whether it erred when calculating Bos-
ton's criminal history points for sentencing. Boston filed a supple-
mental pro se brief contending that the district court erred in finding
that the 10.27 grams of drugs he sold in December 1996 were crack
cocaine. Also in his supplemental brief, Boston lists several issues
which he desires to "preserve" for a motion pursuant to 28 U.S.C.A.
§ 2255 (West Supp. 1999). In accordance with the requirements of
Anders, we have examined the entire record and find no meritorious
issues for appeal.
We initially find that the district court properly complied with the
requirements of Rule 11 by informing Boston of the applicable factors
outlined in Rule 11(c), by ensuring the voluntariness of Boston's
guilty plea, and by inquiring into the factual basis of the plea. See
Fed. R. Crim. P. 11(c)-(d), (f). We also find no error in the computa-
tion of Boston's criminal history points, as the record demonstrates
that the district court correctly calculated them to be eleven and then
properly sentenced Boston according to Criminal History Category V.
We next find that the district court did not err when finding the
10.27 grams to be crack cocaine. Contrary to Boston's contention, the
Government need not provide expert chemical analysis to prove the
identity of a narcotic by a preponderance of the evidence. See United
States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976). Moreover, two
DEA agents testified (one in his affidavit attached to the original
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complaint and the other during the plea hearing) that chemical analy-
sis of the 10.27 grams revealed the substance to be crack cocaine.
Boston also admitted in his objections to the presentence report his
responsibility for at least thirty-five grams of crack cocaine. The dis-
trict court was free to adopt the finding in Boston's presentence report
that the 10.27 grams were crack cocaine because Boston failed to
object to this finding. See United States v. Terry, 916 F.2d 157, 162
(4th Cir. 1990).
After reviewing the record as Anders requires, we also find that
Boston's "preserved" issues questioning whether he knowingly or
intelligently pled guilty and whether the Government violated the plea
agreement are both without merit. See Anders v. California, 386 U.S.
738, 744 (1967). Boston develops neither issue and both his plea
agreement and statements he made during his plea colloquy refute
these claims. Finally, we find that Boston's ineffective assistance of
counsel claim is more properly raised on collateral review because the
record does not conclusively demonstrate that his counsel rendered
ineffective assistance. See United States v. Gastiaburo, 16 F.3d 582,
590 (4th Cir. 1994). Accordingly, we affirm the district court's judg-
ment.
This Court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that such 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. Coun-
sel's motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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