     Case: 17-41217      Document: 00514711047         Page: 1    Date Filed: 11/05/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-41217                      United States Court of Appeals

                                  Summary Calendar
                                                                               Fifth Circuit

                                                                             FILED
                                                                      November 5, 2018

UNITED STATES OF AMERICA,                                               Lyle W. Cayce
                                                                             Clerk
                                                 Plaintiff-Appellee

v.

ROBERT EDWARD BOROWSKI,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:16-CR-73-2


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Robert Edward Borowski pleaded guilty, pursuant to a plea agreement,
to a single count of conspiracy to possess with intent to distribute 500 grams
or more of methamphetamine. The plea agreement contained an appeal waiver
in which he waived the right to appeal his conviction and sentence; he retained
the right to appeal a punishment above the statutory maximum and to appeal
or seek collateral review of a claim of ineffective assistance of counsel.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 17-41217

      Borowski argues that his trial counsel was ineffective because he did not
reveal a conflict of interest, waived a detention hearing, and promised that the
district court would impose a lenient sentence. The Government filed a motion
for summary affirmance as to this claim.
      The record is not sufficiently developed to allow fair consideration of his
claims, and, therefore, we decline to consider them without prejudice to any
right that Borowski has to assert them on collateral review. See United States
v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014). Because the claim is not foreclosed
or clearly incorrect as a matter of law, summary affirmance is not warranted.
See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
      Next, Borowski contends that the district court failed to hold a pretrial
detention hearing. He asserts that the district court improperly canceled the
hearing after a discussion with his counsel. The Government argues that the
claim is barred by the appeal waiver and moves to dismiss the claim.
      The district court’s decision whether to hold a detention hearing, and the
reasons underlying the cancelation of the hearing, implicate nonjurisdictional
matters that were waived by Borowski’s guilty plea. See Tollett v. Henderson,
411 U.S. 258, 267 (1973); United States v. Cothran, 302 F.3d 279, 285-86 (5th
Cir. 2002). A claim concerning pretrial detention was not excepted from the
appeal waiver or does not implicate the validity of the plea. See Gerstein v.
Pugh, 420 U.S. 103, 119 (1975); United States v. Bond, 414 F.3d 542, 544 (5th
Cir. 2005).   Because the Government seeks to enforce the waiver, which
Borowski does not argue is invalid, his claim is barred and subject to dismissal.
See United States v. Higgins, 739 F.3d 733, 739 (5th Cir. 2014); United States
v. Story, 439 F.3d 226, 230-231 (5th Cir. 2006); Bond, 414 F.3d 542, 544 (5th
Cir. 2005).   Moreover, a challenge to pretrial detention is moot now that
Borowski has been convicted and sentenced. United States v. O’Shaughnessy,



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                                  No. 17-41217

772 F.2d 112 (5th Cir. 1985). Additionally, Borowski contends that the district
court erred by failing to permit him to withdraw his guilty plea. He argues
that his trial counsel had a conflict of interest and, thus, the district court
should have inquired further as to the validity of the plea. The Government
asserts that this claim should be dismissed based on the appeal waiver.
However, because the claim implicates the validity of the guilty plea, it can be
reviewed despite the waiver. See United States v. Carreon-Ibarra, 673 F.3d
358, 362 n.3 (5th Cir. 2012).
      Borowski did not file a motion to withdraw his guilty plea, tell the district
court that he sought to file such a motion, or otherwise suggest that he desired
to withdraw his plea. Rather, the record establishes that Borowski entered an
intelligent, knowing, and voluntary plea and that he and his counsel indicated
that he wanted to proceed with the plea. Thus, the record does not reflect that
the district court had any basis to inquire further as to whether the guilty plea
should be withdrawn.
      Given the foregoing, the Government’s motion for summary affirmance
is DENIED. The motion to dismiss is GRANTED as to Borowski’s challenge to
the denial of a detention hearing but DENIED as to Borowski’s challenge as to
his guilty plea. The judgement of the district court is otherwise affirmed. The
Government’s motion for an extension of time to file an appellate brief is
DENIED as unnecessary.




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