Filed: Nov. 24, 2009
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5193 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. TIMOTHY HUGH LINDSEY, Defendant –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 Affirmed by unpublished per curiam opinion.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,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5193 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. TIMOTHY HUGH LINDSEY, Defendant –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 Affirmed by unpublished per curiam opinion.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, I..
More
UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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, erred in failing to advise him, before
accepting his guilty plea, that he could be sentenced as a
career offender, and erred in sentencing him as a 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 it resulted in a total lack of communication
preventing an adequate defense. United States v. Reevey,
364 F.3d 151, 156 (4th Cir. 2004). These factors are weighed
against the district court’s “interest in the orderly
administration of justice.” Id. at 157. Here, Lindsey moved
for new counsel before he entered his guilty plea. At the
motions hearing, he explained that he was dissatisfied because
he had been unable to contact his attorney who had, in their few
meetings, seemed more interested in a guilty plea than in
preparing a defense for him, and who had not given him
2
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. We conclude from these
facts that the motion for new counsel 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 argues that his plea was “substantially
uninformed” because he was not informed that he could be
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); United States v.
Martinez,
277 F.3d 517, 524 (4th Cir. 2002). 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. United States v.
Williams,
977 F.2d 866, 871 (4th Cir. 1992). We conclude that
3
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” under the “otherwise” clause in 18 U.S.C. § 924(e)
(2006) must be roughly similar to enumerated crimes), and
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. Therefore, this issue is reviewed for plain
error. 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 . . . and materially indistinguishable.” United
States v. Roseboro, 551 F.3d 226, 229 n.2 (4th Cir. 2009).
Burglary of a dwelling is one of the crimes enumerated in
§ 4B1.2(a)(2) as a crime of violence. As Lindsey concedes, the
North Carolina offense of breaking and entering is “generic
4
burglary.” United States v. Thompson, 421 F.3d 278, 284 (4th
Cir. 2005) (following Taylor v. United States,
495 U.S. 575
(1990), in interpreting § 924(e)). Thus, Lindsey was properly
sentenced as a career offender.
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
5
