United States v. Boley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4489
IRVIN BOLEY, a/k/a Whitey,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4505
IRVIN BOLEY, a/k/a Whitey,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CR-01-97)
Submitted: February 28, 2003
Decided: March 11, 2003
Before WIDENER and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
No. 02-4489 affirmed and No. 02-4505 dismissed by unpublished per
curiam opinion.
2 UNITED STATES v. BOLEY
COUNSEL
Edward M. Hall, LAW OFFICE OF EDWARD HALL, Morgantown,
West Virginia, for Appellant. Kasey Warner, United States Attorney,
R. Gregory McVey, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In these consolidated appeals, Irvin Boley appeals his conviction
and sentence of fifty-seven months’ imprisonment for conspiracy to
distribute oxycodone, in violation of 21 U.S.C. § 846 (2000). Boley’s
counsel has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), questioning whether the district court ensured
Boley’s guilty plea was entered into knowingly and voluntarily and
arguing that Boley’s sentence should not have been enhanced for pos-
sessing a firearm, but stating that, in his opinion, there were no meri-
torious grounds for appeal. Advised of his right to file a pro se
supplemental brief, Boley has not done so. In No. 02-4489, we affirm
Boley’s conviction and sentence. We dismiss No. 02-4505 because
the notice of appeal in that case was untimely filed.*
Boley contends the district court did not ensure his guilty plea was
knowingly and voluntarily entered. Allegations of Fed. R. Crim. P. 11
violations are reviewed for plain error where, as here, there was no
*The notice of appeal in No. 02-4505 was untimely but was filed
within the additional excusable neglect period. See Fed. R. Crim. P.
4(b)(4). Because Boley noted a timely appeal pro se from the same crim-
inal judgment, we conclude it is unnecessary to remand No. 02-4505 for
an excusable neglect finding under Fed. R. App. P. 4(b)(4).
UNITED STATES v. BOLEY 3
objection in the district court. United States v. Vonn, 535 U.S. 55, 122
S. Ct. 1043, 1046 (2002). We have reviewed Boley’s Rule 11 pro-
ceedings and determine the district court’s colloquy was adequate to
ensure Boley knowingly and voluntarily entered his guilty plea.
Boley argues the district court lacked subject matter jurisdiction to
sentence him for possessing a firearm in furtherance of the conspiracy
because the enhancement was not charged as an element of his
offense of conviction. We reject this claim. See United States v. Kin-
ter, 235 F.3d 192, 199-202 (4th Cir. 2000), cert. denied, 532 U.S. 937(2001).
As required by Anders, we have examined the entire record and
find no meritorious issues for appeal. Accordingly, we affirm Boley’s
conviction and sentence in No. 02-4489. We dismiss No. 02-4505, an
appeal from the same criminal judgment, as untimely. This court
requires that counsel inform his client, in writing, of his right to peti-
tion the Supreme Court of the United States for further review. If the
client 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 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.
No. 02-4489 - AFFIRMED
No. 02-4505 - DISMISSED