US v. Timothy Lindsey

Filing 920091124

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5193 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TIMOTHY HUGH LINDSEY, Defendant Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

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