United States v. Bouler , 351 F. App'x 822 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5072
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KALEIBA SHONNTA BOULER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00010-FDW-3)
Submitted: October 1, 2009 Decided: November 13, 2009
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
M. Timothy Porterfield, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kaleiba Shonnta Bouler appeals her 152-month sentence
following her guilty plea to conspiracy to possess cocaine and
cocaine base with the intent to distribute, in violation of 21
U.S.C.A. § 841 (West 1999 & West Supp. 2009) and 21 U.S.C. § 846(2006). Counsel has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), stating that after a review of
the record, there are no meritorious issues for appeal, but
questioning whether Bouler received effective assistance of
trial counsel. Bouler filed a pro se supplemental brief and
moves this court for appointment of new appellate counsel.
Finding no error, we affirm.
Claims of ineffective assistance of counsel are
generally not cognizable on direct appeal. United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997). Instead, ineffective
assistance claims are appropriately brought pursuant to 28
U.S.C.A. § 2255 (West Supp. 2009) to allow for adequate
development of the factual record. See King, 119 F.3d at 295.
A defendant may raise an ineffective counsel claim on direct
appeal only if the record conclusively demonstrates that defense
counsel did not provide effective representation. United
States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). We
have reviewed the record and find that it does not conclusively
demonstrate ineffective assistance. Accordingly, we decline to
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address on direct appeal whether Bouler’s trial counsel provided
assistance that satisfied constitutional requirements.
In her pro se supplemental brief, Bouler first
contends that the search warrant used to obtain evidence against
her violated the Fourth Amendment and that there were numerous
discrepancies in the Government’s case against her. Bouler has
waived these issues regarding her conviction by pleading guilty.
Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v.
Willis, 992 F.2d 489, 490 (4th Cir. 1993) (“A knowing,
voluntary, and intelligent guilty plea to an offense
conclusively establishes the elements of the offense and the
material facts necessary to support the conviction.”).
Bouler next argues that her sentence was unreasonable
because the presentence investigation report (PSR) incorrectly
added two points to her offense level for reckless endangerment
during flight, pursuant to U.S. Sentencing Guidelines Manual
§ 3C1.2 (2006). The district court expressed concern that
Bouler demonstrated “reckless indifference to human life” by
“recklessly driving down the highway and causing highway
accidents that cause people to have injury and have property
injury.” The district court’s determination of the facts is
reviewed for clear error; its decision that an adjustment
applies is reviewed de novo. United States v. Quinn, 359 F.3d
666, 679 (4th Cir. 2004).
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The Guidelines provide for a two-level enhancement to
the offense level if “the defendant recklessly created a
substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer.”
USSG § 3C1.2. The Sentencing Guidelines define reckless as “a
situation in which the defendant was aware of the risk created
by his conduct and the risk was of such a nature and degree that
to disregard that risk constituted a gross deviation from the
standard of care that a reasonable person would exercise in such
a situation.” USSG § 2A1.5, comment. (n.1). Both the plain
language of the guideline and case law mandate application of
the adjustment when the defendant is resisting arrest and her
conduct creates a substantial risk of serious bodily injury,
even if no injury results. See, e.g., United States v. Jimenez,
323 F.3d 320, 323-24 (5th Cir. 2003); United States v. Williams,
254 F.3d 44, 47 (2d Cir. 2001). A defendant fleeing from police
by car, striking two vehicles en route, creates an obvious risk
that a traffic accident may occur and cause serious bodily
injury. The district court did not clearly err in finding that
Bouler’s conduct created such a risk. See Jimenez, 323 F.3d at
324 (upholding the application of the enhancement where the
defendant led police in a high-speed chase but did not cause any
personal or property damage).
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Bouler additionally asks this court to remand her case
for resentencing to eliminate the crack-cocaine sentencing
disparity. Any sentence modification resulting from retroactive
amendments to the sentencing guidelines must be made by the
district court pursuant to 18 U.S.C. § 3582(c)(2) (2006), rather
than by this court on direct appeal.
Bouler also challenges the amount of powder cocaine
attributed to her in the presentence report. She contends, as
she did at the sentencing hearing, that a portion of the
collected substance was actually dirt. For the first time,
however, she argues that the 116 grams of dirt was found
separate from the cocaine powder, and thus was not used to
dilute the purity of the drug. In addition, Bouler challenges
the PSR’s contention that the Government found four kilograms of
powder cocaine in her apartment, arguing the photos and other
evidence only proved the existence of three kilograms. Even
accepting both arguments, however, Bouler’s offense level would
have remained the same. Thus, the resolution of these issues
has no bearing on Bouler’s offense level and Guidelines range.
See United States v. Stokes, 261 F.3d 496, 499 (4th Cir. 2001)
(explaining the standard for harmless error review).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Bouler’s conviction and sentence and deny
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her motion for appointment of new counsel. This court requires
that counsel inform Bouler, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Bouler 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.
Counsel’s motion must state that a copy thereof was served on
Bouler. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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