                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-2008

USA v. Boika
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3785




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                                                 NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                       No. 06-3785
                      ____________

            UNITED STATES OF AMERICA

                             v.

                 ALIAKSANDR BOIKA
                       a/k/a
                 ALEXANDER BOIKO

                       Aliaksandr Boika,

                             Appellant
                      ____________

      On Appeal from the United States District Court
                 for the District of New Jersey
                   (D.C. No. 03-cr-00889-2)
      District Judge: Honorable Dennis M. Cavanaugh
                         ____________

        Submitted Under Third Circuit LAR 34.1(a)
                    January 7, 2008

Before: FISHER, HARDIMAN and ALDISERT, Circuit Judges.

                 (Filed: January 29, 2008)
                      ____________

               OPINION OF THE COURT
                    ____________
FISHER, Circuit Judge.

       Pursuant to a plea agreement on February 28, 2005, Aliaksandr Boika pleaded

guilty to conspiracy to advertise child pornography in violation of 18 U.S.C. § 2251(e),

and conspiracy to commit money laundering with proceeds of child pornography in

violation of 18 U.S.C. § 1956(h). The District Court sentenced Boika to 300 months in

prison and he timely appealed. Boika’s counsel now requests leave to withdraw and has

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are

no nonfrivolous issues to appeal. We will grant the Anders motion and affirm the

judgment of the District Court.

                                             I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Aliaksandr Boika, a citizen of Belarus, signed a plea agreement on February 28,

2005, wherein he pleaded guilty to conspiracy to advertise child pornography and

conspiracy to commit money laundering with proceeds from child pornography. As part

of that plea agreement, Boika waived his right to appeal the conviction or sentence1 and

in return he received a lesser sentence. Because Boika is not fluent in English, a



       1
       The agreement permitted an appeal only if the sentence ultimately imposed was
above the calculated United States Sentencing Guidelines range. That is not the case
here.

                                              2
Belarusian interpreter was employed to translate the plea agreement and conveyed its

terms to Boika. This all took place in the presence of Boika’s counsel. Consequently,

Boika signed an application for permission to enter a plea of guilty that was again

translated by the interpreter and signed by Boika in the presence of counsel. Boika’s

counsel then certified that to the best of his knowledge and belief, the statements,

representations and declarations made by Boika in his application for permission to enter

a plea of guilty were in all respects accurate and true. Counsel also certified that the

guilty plea as offered by Boika in the application and in open court on February 28, 2005,

was knowingly and voluntarily made with full understanding of the consequences of the

plea.

        At the ensuing plea hearing on February 28, 2005, the District Court reviewed both

the plea agreement and the application for permission to enter a plea of guilty with Boika.

Appellant certified, through the interpreter, that he understood the plea agreement and

was pleading guilty. Boika’s counsel, when questioned by the court, stated that he was

satisfied that Boika entered the plea voluntarily and with full knowledge of his rights and

responsibilities under the agreement. In accordance with the parties’ plea agreement

stipulations to the same, the District Court calculated a total offense level of 40, yielding

a United States Sentencing Guidelines (“guideline”) range of 292 months to 365 months.

The District Court then sentenced him to 300 months in prison. This appeal followed.

Pursuant to Anders, Boika’s counsel now moves to withdraw.



                                              3
                                             II.

       We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

Furthermore, we have jurisdiction over appeals, even where, as here, the defendant has

waived his right to appeal. United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007).

However, this court has held that “we will not exercise that jurisdiction to review the

merits of [such an appeal] if we conclude that [the defendant] knowingly and voluntarily

waived h[is] right to appeal unless the result would work a miscarriage of justice.” Id.2

Because Boika entered a guilty plea, the issues he may raise on appeal are limited to

challenging the validity of his indictment or guilty plea. See Menna v. New York, 423

U.S. 61, 62 (1975) (citing Blackledge v. Perry, 417 U.S. 21, 30 (1974)).

                                             III.

       The Supreme Court has held that if counsel “finds [an appeal] to be wholly

frivolous, after a conscientious examination” of the record, he should “so advise the court

and request permission to withdraw.” Anders, 386 U.S. at 744. Following counsel’s

examination of the record, he must submit a brief addressing any issues that might

“arguably support the appeal.” Id. Once counsel has filed an Anders motion and

submitted a brief, we must then decide whether the appeal before us is wholly frivolous.


       2
         See United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001) ( “Waivers of
appeals, if entered into knowingly and voluntarily, are valid.”). The hearing transcript
demonstrates that Boika entered into his plea agreement, after it was translated,
knowingly and voluntarily and we find that such a waiver does not work a miscarriage of
justice in this case. He has therefore waived his right to appeal. See also Part III.B of this
opinion.

                                              4
Accordingly, our twofold inquiry is (1) whether counsel has thoroughly examined the

record for appealable issues and explained why such issues are frivolous, and (2) whether

an independent review of the record presents any nonfrivolous issues. United States v.

Youla, 241 F.3d 296, 300 (3d Cir. 2001) (citing United States v. Marvin, 211 F.3d 778,

780 (3d Cir. 2000)). In addition, counsel must show that he adequately fulfilled the

requirements of L.A.R. Rule 109.2(a).3 Id.

                                             A.

        Under the first prong of our inquiry, counsel must present sufficient information

“to satisfy the court that counsel has thoroughly examined the record in search of

appealable issues, and . . . explain[ed] why the issues are frivolous.” Youla, 241 F.3d at

300. Counsel need not raise and reject every possible claim, rather he must “provide

sufficient indicia that he thoroughly searched the record and the law in service of his

client so that we might confidently consider only those objections raised.” Id. In his

brief, counsel raises two possible issues for appeal, (1) whether the plea was knowing and

voluntary, and (2) whether trial counsel was ineffective. Boika’s counsel sufficiently

explains why, in his opinion, these claims are frivolous. After reviewing counsel’s brief

and the accompanying materials, we conclude that he has satisfied the first prong of this

test.


        3
        There is no evidence here that counsel did not fulfill these responsibilities. Boika
was presented with a copy of Appellant’s Brief and has not chosen to raise any additional
issues for us to consider at this time. Thus, the requirements of L.A.R. Rule 109.2(a)
have been satisfied.

                                             5
                                             B.

       Under the second prong of this test, we must independently review the record and

determine whether any nonfrivolous issues exist for appeal. An appeal is frivolous as a

matter of law where “‘none of the legal points [are] arguable on their merits.’” Neitzke v.

Williams, 490 U.S. 319, 325 (1989) (quoting Anders, 386 U.S. at 744). In proceeding

with our independent review, “where an Anders brief initially appears to be adequate on

its face, the proper course is for the appellate court to be guided in reviewing the record

by the Anders brief itself.” Youla, 241 F.3d at 301. Consequently, a “complete scouring

of the record” is unnecessary. Id. Because the Anders brief filed here by counsel is

adequate on its face, we are accordingly guided by that brief.

       We agree with counsel that there are no nonfrivolous issues concerning the validity

of the plea. In order for a plea to withstand a challenge on review, it must meet both the

statutory requirements of Federal Rule of Criminal Procedure 11 (“Rule 11”) and the

constitutional requirements of Boykin v. Alabama, 395 U.S. 238 (1969). A review of the

plea agreement proceedings establishes that the District Court, through the use of an

interpreter, properly questioned and advised Boika of his rights, took affirmative steps “to

ensure that the plea was intelligent and voluntary,” and ascertained the factual basis for

the plea pursuant to Boykin and Rule 11. See Boykin, 395 U.S. at 242.

       As to any claim regarding the ineffective assistance of counsel, we agree with

counsel that there exists no issue of ineffectiveness. Issues regarding the ineffectiveness



                                              6
of trial counsel in this case are meritless because they cannot be adjudicated on direct

appeal. United States v. Garth, 188 F.3d 99, 107 n.11 (3d Cir. 1999).

       In addition to these claims, we find that any argument concerning the

reasonableness of Boika’s sentence would be frivolous. In particular, Boika agreed,

pursuant to his plea agreement, to waive any appeal of his sentence so long as that

sentence fell within the range calculated by the judge at sentencing. Based on the parties’

stipulated offense level, the District Court sentenced Boika to 300 months, which falls at

the low end of the range calculated by the Court. As we have already determined, his

plea agreement was entered into knowingly and voluntarily, thus waiving any right to

appeal on this ground. Consequently, any claim regarding Boika’s sentence is without

merit and therefore frivolous.

       Accordingly, after conducting our own independent review, there are no

nonfrivolous issues for appeal. For the foregoing reasons, we will affirm the judgment of

the District Court and grant counsel’s motion to withdraw.4




       4
        As a result, we conclude that it is not necessary to appoint counsel to file a
petition for rehearing in this Court or a petition for writ of certiorari in the United States
Supreme Court on Boika’s behalf. See L.A.R. Rule 109.2(b).

                                               7
