UNPUBLISHED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.
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; 1:09-
cr-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Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Vincent Lamar Boulware pleaded guilty, pursuant to a
written plea agreement, to three counts of bank robbery, in
violation of 18 U.S.C. § 2113 (2006). The district court
sentenced Boulware to 188 months’ imprisonment. 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 right to appeal if that
waiver is knowing and intelligent. United States v. Poindexter,
492 F.3d 263, 270 (4th Cir. 2007). 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. Crim. P. 11, the waiver is both valid and
enforceable. 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 the right to appeal his
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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 Boulware’s challenges to the procedural and
substantive reasonableness of his sentence fall within the
waiver’s scope, we grant the Government’s request in part and
dismiss this portion of the appeal. Boulware, however,
preserved the right to appeal on the basis of ineffective
assistance of counsel.
Turning, then, to Boulware’s claim of ineffective
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 Supp. 2010), unless counsel’s ineffectiveness
conclusively appears on the record. See United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). 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 argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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