Boswell

MEMORANDUM **

Robert Randall Boswell appeals from his judgment and sentence for conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846 . Boswell claims he was denied his Sixth Amendment right to counsel when the government based its refusal to move for a downward departure under U.S.S.G. § 5K1.1 on statements Boswell made under oath when he was effectively unrepresented by counsel. We have jurisdiction under 28 U.S.C. § 1291 .

Because Boswell’s claim is entirely independent of his factual guilt, he did not waive it when he subsequently entered an unconditional guilty plea. See United States v. Garcia-Valenzuela, 232 F.3d 1003, 1006-07 (9th Cir.2000).

We reject Boswell’s claim. This is not a case where counsel took an “adversary and antagonistic” stance and thereby rendered ineffective representation. See United States v. Adelzo-Gonzalez, 268 F.3d 772, 779-80 (9th Cir.2001); United States v. Wadsworth, 830 F.2d 1500, 1510-11 (9th Cir.1987). Rather, Boswell was effectively represented when the court questioned him under oath on January 22, 2002. His attorney was not relieved of his duties as counsel until after Boswell had made the statements…