US v. Timothy Lindsey

Filing 920091124

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5193

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. TIMOTHY HUGH LINDSEY, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:08-cr-00091-BR-1)

Submitted:

August 11, 2009

Decided:

November 24, 2009

Before GREGORY, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Rudolph A. Ashton, III, MCCOTTER, ASHTON & SMITH, P.A., New Bern, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Timothy Hugh Lindsey pled guilty without a plea

agreement to bank robbery, 18 U.S.C. § 2113(a) (2006), and was sentenced as a career offender to a term of 151 months

imprisonment.

Lindsey appeals his sentence, arguing that the

district court abused its discretion in denying his motion to appoint new counsel, guilty and erred plea, erred in failing he to advise be him, before as a

accepting career

his

that in

could

sentenced as a

offender,

sentencing

him

career

offender.

U.S. Sentencing Guidelines Manual § 4B1.1 (2008). Our review of the denial of a motion for new counsel

entails consideration of (1) the timeliness of the motion; (2) the adequacy of the inquiry into the defendant's complaint about his attorney; and (3) whether the attorney/client conflict was so great that an it resulted in a total lack of communication v. Reevey,

preventing

adequate

defense.

United

States

364 F.3d 151, 156 (4th Cir. 2004). against the district court's

These factors are weighed "interest in the orderly

administration of justice."

Id. at 157.

Here, Lindsey moved At the

for new counsel before he entered his guilty plea.

motions hearing, he explained that he was dissatisfied because he had been unable to contact his attorney who had, in their few meetings, preparing seemed a more interested for him, 2 in a who guilty had plea not than in him

defense

and

given

sufficient time to consider a proffered plea agreement.

Two

months after his motion was denied, at the Fed. R. Crim. P. 11 hearing, Lindsey initially expressed continued dissatisfaction with his attorney. However, after the court recessed to give

Lindsey additional time to discuss his plea with his attorney, he informed the court that he was satisfied with his attorney's services, and entered a guilty plea. facts that the motion for new counsel We conclude from these was timely, that the

court's inquiry into the basis for the motion was adequate, and that communications between Lindsey and his attorney had not entirely broken down. Therefore, the district court did not

abuse its discretion in denying the motion for new counsel. Lindsey uninformed" argues he that was not his plea was that "substantially he could be

because

informed

classified as a career offender.

Because Lindsey did not seek

to withdraw his guilty plea, his claim of Rule 11 error is reviewed under the plain error standard of review. United

States v. Vonn, 535 U.S. 55, 58-59 (2002); Martinez, 277 F.3d 517, 524 (4th Cir. 2002).

United States v. He acknowledges

that Rule 11 requires only that a defendant be advised about the statutory sentencing range to which his guilty plea will expose him, United States v. Goins, 51 F.3d 400, 401-02 (4th Cir.

1995), not about the possible guideline range. Williams, 977 F.2d 866, 871 (4th Cir. 1992). 3

United States v. We conclude that

Lindsey has not shown that any error occurred during the Rule 11 hearing. Finally, Lindsey contends that the district court's

decision that his prior conviction for breaking and entering is a crime of violence within the meaning of § 4B1.2(a)(2) should be reviewed in light of the Supreme Court's decision in Begay v. United States, 128 S. Ct. 1581 (2008) (holding that a "violent felony" (2006) under must the be "otherwise" clause to in 18 U.S.C. § 924(e) and

roughly

similar

enumerated

crimes),

Chambers v. United States, 129 S. Ct. 687 (2009) (holding, in accord with Begay, that failure to report for penal confinement is not a violent felony under § 924(e)). Begay was decided well

before Lindsey pled guilty or was sentenced, but he did not object to his career offender status on this ground in the

district court. error.

Therefore, this issue is reviewed for plain

United States v. Olano, 507 U.S. 725, 732 (1993). We look to our case law interpreting both the terms

"crime of violence" under § 4B1.1 and "violent felony" under § 924(e) because the language defining these terms is "nearly identical States v. . . . and materially 551 F.3d is indistinguishable." 229 the n.2 (4th Cir. United 2009). in

Roseboro, of a

226, of

Burglary

dwelling

one

crimes

enumerated

§ 4B1.2(a)(2) as a crime of violence. North Carolina offense of breaking 4

As Lindsey concedes, the and entering is "generic

burglary." Cir. 2005)

United States v. Thompson, 421 F.3d 278, 284 (4th (following Taylor v. United States, 495 U.S. 575

(1990), in interpreting § 924(e)). sentenced as a career offender. We district facts therefore We affirm the with are and

Thus, Lindsey was properly

sentence oral

imposed

by

the the the the

court. legal before

dispense

argument

because in aid

and

contentions the court

adequately argument

presented not

materials

would

decisional process. AFFIRMED

5