US v. Paul Norfleet, No. 09-4816 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4816 UNITED STATES OF AMERICA, Plaintiff Appellee, v. PAUL NORFLEET, Defendant Appellant.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 Affirmed by unpublished per curiam opinion.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 Scott News, Unpublished opinions are not binding precedent in this circuit. 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 violence, received 18 an appeals. Norfleet firearm U.S.C. aggregate during the § 924(c)(1) sentence commission (2006) of 205 of a (Count months. crime Five). Norfleet of He now His attorney has filed brief pursuant to Anders v. California, stating a 386 U.S. 738 (1967), that there are no has filed a pro additional issues. raising meritorious se several issues supplemental issues but for appeal. brief raising 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 review the credibility of witnesses, and we assume the jury resolved all contradictions in the testimony in favor of the Government. United States v. Sun, 278 F.3d 302, 312 (4th Cir. 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 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 relinquish the vehicle. Evidence at to act if the person failed to Id. at 247. trial established that Norfleet, Brian 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 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 inferred where the defendant has possessed the gun under conditions under which an ordinary man would have inspected the pistol and discovered the absence of a serial number. United States v. Sullivan, 455 F.3d 248, 261 (4th Cir. 2006). Evidence at trial was sufficient to convict Norfleet under § 922(k). obliterated was A firearm recovered whose from the serial area number where had Norfleet been was apprehended. Clark identified the firearm, Government s Exhibit 4 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 or possessed a firearm in furtherance of any such crime. The evidence was sufficient to convict Norfleet of this offense. Testimony established that Norfleet pointed the gun at Ponds while robbing him and forcing him into the trunk of his car. United States v. Carjacking is a crime of violence. 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. The court then conducted an Norfleet, extensive colloquy, questioning 5 the Assistant 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 problems with the case; Norfleet had until experienced the day no before communication the March 12 hearing; had reviewed all discovery and shared discovery with Norfleet; and recommendation had that informed he Norfleet plead that, guilty, he regardless was of the prepared to 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. Accordingly, the court denied Norfleet contends on appeal that this ruling was erroneous. 6 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 justice. United States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988). Thus, a defendant s court s power to control right the to administration substitute of 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 States v. Reevey, analyzing the 364 for substitution F.3d district 151, court s 156 of (4th counsel. Cir. decision on United 1994). a When motion for substitution, we consider three factors: (1) the timeliness of [the motion]; (2) the adequacy of the court s inquiry into [the defendant s] defendant complaint and defense about counsel; counsel] and experienced communication preventing an adequate defense. (3) a whether total [the lack of Id. Application of these factors convinces us that there was no abuse of discretion. made almost one April 7, 2009. month The motion was timely, as it was before trial, which was scheduled for See United States v. Mullen, 32 F.3d 891, 896 (4th Cir. 1994) (finding motion for substitution filed twentythree days before trial was timely). As previously stated, the court in conducted a lengthy colloquy 7 order to decide the motion. Finally, there is nothing in the record to suggest a breakdown in communication so adequately defend Norfleet. great that Saunders could not In this regard, we have observed that a disagreement over strategy and tactics, such as existed here, does not constitute a communication breakdown sufficient United States v. Johnson, 114 to warrant replacing counsel. F.3d 435, 443 (4th Cir. 1997). 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 Sentencing Guidelines Manual sentencing adjustments based offense for clear error. of the § 3B1.1(c) on a Guideline]. (2008). defendant s We role U.S. review in the United States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002). 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 over trunk of everything the car. and instructed Norfleet clearly during the commission of the offense. 8 him to held a climb into leadership the role IV In his pro se brief, Norfleet asserts that the jury instructions on Count Five (charging constructively amended that Count. the indictment with the jury the § 924(c) violation) Having carefully compared instructions, there was no constructive amendment. we conclude that 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. We therefore affirm. This court requires that counsel inform his client, in writing, of his right to petition United States for further review. the Supreme Court of the 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 state that a copy was served on the client. oral argument because the facts 9 and legal We dispense with contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 10
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