                                UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).

                                                3
             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).



                                         4
            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

                                              5
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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