UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4426
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS DONNELL SIFFORD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:07-cr-00097-RJC-1)
Submitted: April 15, 2009 Decided: May 15, 2009
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
D. Baker McIntyre III, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Donnell Sifford appeals his conviction on a
guilty plea and sentence on one count of possession with intent
to distribute one or more mixture and substances containing a
detectable amount of cocaine and cocaine base, involving at
least five grams of a mixture and substance containing a
detectable amount of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B) (2006) (Count 1), and one count of
possession of ammunition by a convicted felon, in violation of
18 U.S.C. § 922(g)(1) (2006) (Count 2). Sifford argues his
conviction is tainted by the district court's denial of his
motion for substitute counsel, 1 claims error in the district
court’s sentencing of him based on possession of crack cocaine,
and challenges his sentence on Count 2. For the following
reasons, we affirm.
This court reviews a district court's denial of a
motion for substitution of counsel for an abuse of discretion.
United States v. Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir.
1994). A defendant does not have an absolute right to
substitution of counsel, United States v. Mullen, 32 F.3d 891,
1
Sifford’s attorney filed a motion to withdraw as counsel
before Sifford mailed a letter requesting substitute counsel be
appointed. For ease of reference, this opinion refers to both
collectively as Sifford’s motion for substitute counsel.
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895 (4th Cir. 1994), and an indigent defendant may request
another appointed attorney only for good cause, United States v.
Gallop, 838 F.2d 105, 108 (4th Cir. 1988). In evaluating
whether the trial court abused its discretion in denying
Sifford’s motion for substitution of counsel, this court must
consider: (1) the timeliness of the motion; (2) the adequacy of
the court's inquiry into Sifford’s complaint; and (3) "whether
the attorney/client conflict was so great that it had resulted
in total lack of communication preventing an adequate defense."
Gallop, 838 F.2d at 108.
Our review of the district court’s ruling indicates no
error in the denial of Sifford’s motion. The district court
conducted two hearings relative to Sifford’s request for
substitute counsel, and he was afforded ample opportunity to
state his grounds for his request. Prior to their separate
determinations that substitute counsel was not required, both
the magistrate judge and the district judge elicited a detailed
account from both Sifford and his attorney as to their
interactions, asking clarifying questions and requesting
elaboration when necessary. Neither judge found merit to
Sifford’s claims that there was a total lack of communication
between him and his attorney such that an adequate defense was
prevented.
3
Review of the record reveals that, contrary to
Sifford’s claim, counsel did review discovery with her client,
that she represented to the court on two occasions that she
would do everything in her power to represent Sifford, that she
met with Sifford on several occasions and discussed defenses,
trial strategy, the possibility of a plea, and that she did not
feel comfortable as an officer of the court filing the motions
he requested as she believed them to be inappropriate. Thus,
while the relationship between Sifford and his attorney was not
without its problems, the determinations of the district court
that their difficulties did not rise to the level of a total
lack of communication preventing an adequate defense cannot be
said to have been an abuse of discretion. 2
Sifford next claims error in the district court’s
sentencing pursuant to the guidelines for crack, rather than
solely for powder cocaine. Specifically, he claims that while
the Presentence Investigation Report (“PSR”) indicates that the
crime laboratory analysis revealed 41.11 grams of cocaine base
and 59.38 grams of powder cocaine, during Sifford’s prior
counsel’s representation of Sifford, no laboratory report was
2
In addition, Sifford’s affirmations at two junctures in
his Fed. R. Crim. P. 11 proceeding that he was pleading guilty
of his own free will and because he was in fact guilty of the
crimes charged undermine his contentions on appeal. See
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
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provided indicating a substance specifying cocaine base rather
than just cocaine. As this laboratory report to which Sifford
refers is not part of the record on appeal, it is not properly
before this court for consideration. In any event, we find no
sentencing error. Ample evidence exists in the record to
demonstrate that Sifford was guilty of possession of both crack
and powder cocaine. The PSR, the evidence presented at the Rule
11 colloquy and sentencing hearing, and the fact that Sifford
was indicted upon, and specifically pled guilty to, possession
of both crack and powder cocaine fully support the district
court’s sentence based on crack, as well as powder, cocaine.
Finally, Sifford seeks resentencing relative to his
120-month sentence for possession of ammunition by a convicted
felon, in violation of 18 U.S.C. § 922(g) (2006). He claims
that, should this court find error in the district court’s
sentence with regard to the narcotics conviction, it should also
remand for resentencing on the § 922(g) charge. Given that we
have found no error in the district court’s sentencing on Count
1, and Sifford does not challenge the calculation of the offense
level or the corresponding sentencing guidelines range of
imprisonment relative to the § 922(g) conviction, his claim as
to Count 2 is without merit.
Accordingly, we affirm Sifford's conviction and
sentence. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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