US v. Paul Norfleet

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:08-cr-00114-MSD-FBS-2 Copies to all parties and the district court/agency. [998469266] [09-4816]

US v. Paul Norfleet

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4816 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. PAUL NORFLEET, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Mark S. Davis, District Judge. (4:08-cr-00114-MSD-FBS-2) Submitted: October 20, 2010 Decided: November 19, 2010

Before GREGORY, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Bryan L. Saunders, Newport News, Virginia, for Appellant. W. Putney, Assistant United States Attorney, Newport Virginia, for Appellee. Scott News,

Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Paul Norfleet was convicted of possession of a firearm with an obliterated serial number, 18 U.S.C. § 922(k) (2006) (Count Three), carjacking, 18 U.S.C. § 2119 (2006) (Count Four), and use of 18 an a firearm U.S.C. aggregate during the commission (2006) 205 of a crime of He now

violence, received appeals. California, stating Norfleet

§ 924(c)(1) sentence of

(Count

Five). Norfleet

months.

His attorney has filed brief pursuant to Anders v. 386 U.S. 738 are a (1967), no pro raising several issues issues for but

that has

there filed

meritorious se

appeal. raising

supplemental

brief

additional issues.

We affirm.

I Both counsel in the Anders brief and Norfleet in his pro se brief claim that the evidence was insufficient to convict him. When a defendant challenges the sufficiency of the

evidence, we consider whether the evidence, when viewed in the light most favorable to the Government, was sufficient for a rational trier of fact to have found the essential elements of the crime beyond a reasonable doubt. Glasser v. United States,

315 U.S. 60, 80 (1942); United States v. Cameron, 573 F.3d 179, 183 (4th Cir. 2009). substantial evidence. We must sustain a verdict supported by Glasser, 315 U.S. at 80. 2 We do not

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review

the

credibility

of

witnesses,

and

we

assume

the

jury

resolved all contradictions in the testimony in favor of the Government. 2002). To secure a conviction under 18 U.S.C. § 2119, the Government must prove that the defendant "(1) with intent to cause death or serious bodily harm (2) took a motor vehicle (3) that had been transported, shipped, or received in United States v. Sun, 278 F.3d 302, 312 (4th Cir.

interstate or foreign commerce (4) from the person or presence of another (5) by force and violence or intimidation." United

States v. Foster, 507 F.3d 233, 246-47 (4th Cir. 2007) (internal quotation marks omitted). With respect to the first element,

"[t]he government need not prove that the defendant actually intended to cause the harm; it is sufficient that the defendant was conditionally prepared to act if the person failed to

relinquish the vehicle." Evidence at

Id. at 247. established that Norfleet, Brian

trial

Clark, and Juan Vargas accosted Torriano Ponds in a parking lot on May 22, 2008. Norfleet pointed a gun at Ponds' chest and

demanded "everything" from Ponds, who turned over his car keys, cell phone, and other items. Norfleet then forced Ponds into

the trunk of the car, and the three assailants drove away with Ponds in the trunk. Ponds was able to escape and call police,

who quickly located Ponds' car and captured Clark and Norfleet. 3

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It was stipulated that Ponds' car had traveled in interstate commerce. Viewed in the light most favorable to the Government, the evidence was sufficient to convict Norfleet of carjacking. With regard to the intent element of the offense, we conclude that the jury could have found that, at the moment the

carjacking began, Norfleet would have shot Ponds had Ponds not relinquished control of the car. In other words, Norfleet was

"conditionally prepared to act if [Ponds] failed to relinquish the vehicle." See id.

To establish a violation of 18 U.S.C. § 922(k), the Government must prove that the defendant knowingly possessed the firearm and knew that the serial number of the firearm had been removed, obliterated, or altered. F.3d 506, 508 (5th Cir. 2004). the serial number may be United States v. Johnson, 381

"Knowledge of the defacement of where the defendant has

inferred

possessed the gun under conditions under which an ordinary man would have inspected the pistol and discovered the absence of a serial number." (4th Cir. 2006). Evidence at trial was sufficient to convict Norfleet under § 922(k). was A firearm whose the serial area number had been was United States v. Sullivan, 455 F.3d 248, 261

obliterated

recovered

from

where

Norfleet

apprehended. Clark identified the firearm, Government's Exhibit 4

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2, as the one Norfleet used during the carjacking.

Further,

there was testimony that Norfleet had possessed that gun since 2007, that he had committed another robbery with it, and that the serial number of the gun had been ground away. Because

Norfleet had possessed the gun for a substantial period of time, the jury could infer that he knew the serial number had been obliterated. To establish a violation of 18 U.S.C. § 924(c)(1), the Government must establish that the defendant "during and in

relation to any crime of violence . . . use[d] or carrie[d] a firearm" crime." offense. or possessed a firearm "in furtherance of any such

The evidence was sufficient to convict Norfleet of this Testimony established that Norfleet pointed the gun at

Ponds while robbing him and forcing him into the trunk of his car. Carjacking is a crime of violence. United States v.

Gonzalez-Melendez, 594 F.3d 28, 31 (1st Cir. 2010); see United States v. Foster, 507 F.3d at 241.

II The parties appeared on March 12, 2009, fully

expecting Norfleet to enter a guilty plea in accordance with a plea agreement. Instead, Norfleet, who had not signed the

agreement, moved for a new attorney. an extensive colloquy, questioning 5

The court then conducted Norfleet, the Assistant

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United States Attorney (AUSA), and Bryan Saunders, Norfleet's lawyer. The colloquy disclosed that Saunders, who had

represented Norfleet since November 2008: had met with Norfleet between eight and ten times; had discussed the case with the AUSA at least a dozen times; had corresponded extensively with the AUSA about with the case; had experienced the day no communication the March 12

problems

Norfleet

until

before

hearing; had reviewed all discovery and shared discovery with Norfleet; and had that informed he Norfleet that, he regardless was of the to

recommendation

plead

guilty,

prepared

represent him at trial. Following the colloquy, the court denied the motion. The court found that Norfleet was dissatisfied with Saunders' representation because Saunders had urged him to plead guilty, while Norfleet wanted to go to trial. The court determined that

Saunders was fully prepared to appropriately defend Norfleet at the upcoming trial. In short, the court found that there was

nothing that should prevent Saunders from conducting an adequate defense. The court observed that the disagreement as to whether

Norfleet should plead guilty was an insufficient reason to grant a motion for substitute counsel. the motion. erroneous. Accordingly, the court denied

Norfleet contends on appeal that this ruling was

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While a criminal defendant has a right to counsel of his own choosing, that right is "not absolute" but is limited so as not to "deprive courts of the exercise of their inherent power to control the administration of justice." United Thus, a court's

States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988). defendant's right to substitute counsel after the

initial appointment is restricted, and he must show good cause as to why he should receive substitute counsel. Id.

We review for abuse of discretion the district court's ruling on a motion 364 for F.3d substitution 151, 156 of counsel. Cir. on a 1994). motion United When for

States v. analyzing

Reevey, the

(4th

district

court's

decision

substitution, we consider three factors: "(1) the "timeliness of [the motion]; (2) the adequacy of the court's inquiry into [the defendant's] defendant and complaint defense about counsel; and (3) a whether total [the of

counsel]

experienced

lack

communication preventing an adequate defense."

Id.

Application of these factors convinces us that there was no abuse of discretion. made almost one month before The motion was timely, as it was trial, which was scheduled for

April 7, 2009.

See United States v. Mullen, 32 F.3d 891, 896

(4th Cir. 1994) (finding motion for substitution filed twentythree days before trial was timely). court conducted a lengthy colloquy 7 As previously stated, the in order to decide the

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motion. breakdown

Finally, there is nothing in the record to suggest a in communication so great that Saunders could not

adequately defend Norfleet.

In this regard, we have observed

that a disagreement over strategy and tactics, such as existed here, does not constitute a communication breakdown sufficient to warrant replacing counsel. F.3d 435, 443 (4th Cir. 1997). United States v. Johnson, 114

III Norfleet claims that a two-level enhancement to his offense level based on his role in the offense was improper. A

defendant qualifies for the enhancement if he was "an organizer, leader, manager, or supervisor in any criminal activity other than described [in other sections of the Guideline]." (2008). We role U.S. review in the

Sentencing sentencing

Guidelines adjustments

Manual based

§ 3B1.1(c) on a

defendant's

offense for clear error. 224 (4th Cir. 2002).

United States v. Sayles, 296 F.3d 219,

We conclude that the enhancement was proper.

It was

Norfleet who asked Vargas and Clark whether they wanted to "do something" with his gun, held Ponds at gunpoint, told him to turn trunk over of "everything" the car. and instructed clearly him held to a climb into the role

Norfleet

leadership

during the commission of the offense. 8

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IV In his pro se brief, Norfleet asserts that the jury instructions on Count Five (charging the § 924(c) violation)

constructively amended that Count. the indictment with the jury

Having carefully compared we conclude that

instructions,

there was no constructive amendment.

The indictment charged,

and the jury was instructed that the Government had to prove, that Norfleet used and carried a firearm during and in relation to a crime of violence, carjacking, or that he possessed the firearm in furtherance of that crime.

V In accordance with Anders, we have reviewed the entire record for meritorious issues and have found none. affirm. writing, We therefore

This court requires that counsel inform his client, in of his right to petition the Supreme Court of the

United States for further review.

If the client requests that a

petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must We dispense with contentions are

state that a copy was served on the client. oral argument because the facts and legal

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adequately

presented

in

the

materials

before

the

court

and

argument would not aid the decisional process. AFFIRMED

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