     Case: 10-40106     Document: 00511214780          Page: 1    Date Filed: 08/25/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 25, 2010
                                     No. 10-40106
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BENJAMIN MICHAEL KOLLAR,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:09-CR-46-1


Before KING, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Benjamin Michael Kollar pleaded guilty pursuant to a written plea
agreement to one count of assaulting a United States employee, in violation of
18 U.S.C. § 111(a)(1). In the plea agreement, he stipulated that he was subject
to the career offender provisions of U.S.S.G. § 4B1.1, and both parties agreed
that a sentence of 37 months–within the guidelines range of 37 to 46
months–was appropriate. Kollar also waived his right to appeal his sentence on
all grounds, with the reservation that he could appeal (a) any sentence exceeding

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 10-40106    Document: 00511214780 Page: 2        Date Filed: 08/25/2010
                                 No. 10-40106

the statutory maximum, and (b) a claim of ineffective assistance of counsel
affecting the validity of the waiver. The district court sentenced Kollar to 37
months in prison in accordance with the plea agreement.
      Kollar now appeals, arguing that his trial counsel rendered ineffective
assistance by failing to object to the use of Kollar’s prior Texas robbery
conviction as a predicate conviction for purposes of § 4B1.1. The Government
argues that the appeal is barred by the waiver, that the record is not sufficiently
developed to entertain an ineffective assistance claim, and that the application
of § 4B1.1 was proper in light of existing precedent. Thus, the Government
moves for dismissal, summary affirmance, or an extension of time to file a brief.
      We conclude that the appeal is barred by the plain terms of the waiver, see
United States v. White, 307 F.3d 336, 340 (5th Cir. 2002), and that Kollar has
offered no valid reason that it should not apply. Kollar’s reliance on United
States v. Self, 596 F.3d 245, 247-50 (5th Cir. 2010), is misplaced. The district
court’s order at sentencing that the special assessment was due immediately was
not inconsistent with Kollar’s obligation to pay the assessment before
sentencing. There was none of the piecemeal rejection or modification of the
agreement that we held was improper in Self. Absent any valid argument for
disregarding the waiver, we will hold Kollar to his bargain. See United States
v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). Even without the waiver, we would
decline to entertain Kollar’s appeal, as we do not have a sufficiently developed
record to determine whether counsel’s conduct was deficient or based on a sound
strategy. See Massaro v. United States, 538 U.S. 500, 504-05 (2003); United
States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006).
      Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED.                   The
Government’s alternative motion to dismiss or for an extension of time to file a
brief is DENIED as unnecessary.



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