US v. Timothy Lindsey, No. 08-5193 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5193 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TIMOTHY HUGH LINDSEY, Defendant Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 imprisonment. career offender to a term of 151 months Lindsey appeals his sentence, arguing that the district court abused its discretion in denying his motion to appoint new accepting career counsel, his guilty offender, offender. erred in plea, that and erred failing he in to advise could be sentencing him, before sentenced him as a as a career 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 preventing an it resulted adequate in a total defense. United 364 F.3d 151, 156 (4th Cir. 2004). against the district court s administration of justice. lack of communication States v. Reevey, These factors are weighed interest Id. at 157. in the orderly 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 preparing a more defense interested for him, 2 in and a guilty who had plea not than given in him 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 We conclude from these 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 uninformed argues because he that was his not classified as a career offender. plea was informed substantially that he could be Because Lindsey did not seek to withdraw his guilty plea, his claim of Rule 11 error is reviewed under the plain error standard of States v. Vonn, 535 U.S. 55, 58-59 (2002); Martinez, 277 F.3d 517, 524 (4th Cir. 2002). review. United 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. 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 (2006) under must the be otherwise roughly clause similar to in 18 U.S.C. enumerated § 924(e) 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 district court. error. offender status on this ground in the 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 Roseboro, v. Burglary of a and materially 551 dwelling F.3d is indistinguishable. 226, one of § 4B1.2(a)(2) as a crime of violence. North Carolina offense of breaking 4 229 n.2 (4th the crimes United Cir. 2009). enumerated in As Lindsey concedes, the and entering is generic burglary. United States v. Thompson, 421 F.3d 278, 284 (4th Cir. (following 2005) Taylor v. United (1990), in interpreting § 924(e)). States, 495 U.S. 575 Thus, Lindsey was properly sentenced as a career offender. We district facts court. and materials therefore legal before We affirm dispense the with sentence oral argument contentions are adequately the and argument court imposed by the because the presented would not in the aid the decisional process. AFFIRMED 5
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