United States v. Johnny Boyce ( 1996 )

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No. 95-1229
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Johnny Boyce, *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 5, 1996
Filed: July 19, 1996
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Before BOWMAN, LOKEN, and HANSEN, Circuit Judges.
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PER CURIAM.
Johnny Boyce challenges the fifty-seven-month sentence imposed
by the District Court1 following his guilty plea to conspiring to provide
a prohibited object (heroin) to an inmate, in violation of 18 U.S.C.
§§ 371, 1791(a)(1) (1994). Counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), and Boyce has filed a pro se
supplemental brief raising additional issues. We affirm.
In his Anders brief, counsel suggests he rendered ineffective
assistance in advising Boyce to waive a reduction for accepting
responsibility, and Boyce joins in this argument. Because the record is
undeveloped as to such a claim, it is more properly the subject of a 28
U.S.C. § 2255 (1994) motion where Boyce can first
1
The Honorable Russell G. Clark, United States District Judge
for the Western District of Missouri.
present it to the District Court. See United States v. Taylor, 82 F.3d
200, 201 (8th Cir. 1996).
In his supplemental pro se brief, Boyce contends the District Court
wrongly assessed a four-level aggravating-role enhancement under U.S.S.G.
§ 3B1.1(a) (1995). This contention is baseless because Boyce stipulated
in his plea agreement that he should receive the enhancement and admitted
at the change-of-plea hearing that he had read the plea agreement and had
consulted with counsel before signing it. See United States v. Nguyen, 46
F.3d 781, 783 (8th Cir. 1995) (holding that defendant who voluntarily and
explicitly acknowledges that specific guidelines provision applies may not
challenge punishment on appeal). For the same reason, any challenge Boyce
makes to the District Court's decision not to grant him an acceptance-of-
responsibility reduction also fails. We also reject as vague and
conclusory Boyce's contentions that the District Court failed to comply
with Federal Rules of Criminal Procedure 11(f) and 32(c)(3)(D). See Fed.
R. App. P. 28(a)(6) (1996); see also Sidebottom v. Delo, 46 F.3d 744, 750
(8th Cir.) (holding that habeas petitioner waived argument by failing to
specify why grounds asserted entitled him to evidentiary hearing) (citing
predecessor to Rule 28(a)(6)), cert. denied, 116 S. Ct. 144 (1995).
For the first time, Boyce also argues that he was entitled to a
three-level decrease under U.S.S.G. § 2X1.1(b)(2). After conducting plain-
error review, see United States v. Montanye, 996 F.2d 190, 192 (8th Cir.
1993) (en banc), we reject the claim, as the undisputed facts reveal that
one of Boyce's co-conspirators was about to receive heroin from another co-
conspirator--for subsequent delivery to Boyce--when the individual
delivering the heroin suspected she had been discovered by authorities and
quickly disposed of the drugs. See U.S.S.G. § 2X1.1(b)(2) (1995)
(providing that three-level decrease in conspiracy cases unavailable if co-
conspirators were about to complete all acts
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believed necessary for successful completion of substantive offense "but
for apprehension or interruption by some similar event beyond their
control").
Finally, Boyce lodges a general ineffective-assistance claim, arguing
that he was prejudiced by counsel's advice to stipulate to "untrue" facts,
and by counsel's failure "to properly mitigate factors that [were] clearly
in [Boyce's] best interest[s]." Boyce's Supplemental Brief at 6. These
shortcomings, Boyce maintains, resulted in his receiving the aggravating-
role enhancement and not receiving a § 2X1.1(b)(2) decrease. Again, such
claims are more properly the subject of a § 2255 motion. See Taylor, 82
F.3d at 201.
Having carefully reviewed the record, we have found no other
nonfrivolous issue for appeal. See Penson v. Ohio, 488 U.S. 75, 80 (1988).
Accordingly, the judgment of the District Court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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