### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 41217 Summary Calendar

UNITED STATES OF AMERICA , 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 ass istance of counsel.

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 5, 2018 Lyle W. Cayce Clerk Case: 17-41217 Document: 00514711047 Page: 1 Date Filed: 11/05/2018No. 17

- 412 17

2 Borowski argues that his t rial 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 motio n 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 revi ew. 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 appe al 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 B orowski ’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 e xcepted 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 dismissa l. S ee United States v. Higgins , 739 F.3d 7 33, 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 , Case: 17-41217 Document: 00514711047 Page: 2 Date Filed: 11/05/2018No. 17

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3 772 F.2d 112 (5 th 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. T he Government
asserts that this claim should be dismissed based on the ap peal 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.3 d 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 h e 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, t he 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 chal lenge as to his guilty plea

. Th e 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

. Case: 17-41217 Document: 00514711047 Page: 3 Date Filed: 11/05/2018