UNPUBLISHED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Affirmed by unpublished per curiam opinion.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. Scott
W. Putney, Assistant United States Attorney, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.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 a firearm during the commission of a crime of
violence, 18 U.S.C. § 924(c)(1) (2006) (Count Five). He
received an aggregate sentence of 205 months. Norfleet now
appeals. His attorney has filed brief pursuant to Anders v.
California, 386 U.S. 738 (1967), raising several issues but
stating that there are no meritorious issues for appeal.
Norfleet has filed a pro se supplemental brief raising
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). We must sustain a verdict supported by
substantial evidence. Glasser, 315 U.S. at 80. We do not
2
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 to act if the person failed to
relinquish the vehicle.” Id. at 247.
Evidence at 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. United States v. Johnson, 381
F.3d 506, 508 (5th Cir. 2004). “Knowledge of the defacement of
the serial number may be 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). A firearm whose serial number had been
obliterated was recovered from the area where Norfleet 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. 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. The court then conducted
an extensive colloquy, questioning Norfleet, the Assistant
5
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 the case; had experienced no communication
problems with Norfleet until the day before the March 12
hearing; had reviewed all discovery and shared discovery with
Norfleet; and had informed Norfleet that, regardless of the
recommendation that he plead guilty, he was 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. Accordingly, the court denied
the motion. 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
power to control the administration of justice.” United
States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988). Thus, a
defendant’s right to substitute counsel after the court’s
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 for substitution of counsel. United
States v. Reevey, 364 F.3d 151, 156 (4th Cir. 1994). When
analyzing the district court’s decision on a 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] complaint about counsel; and (3) whether [the
defendant and defense counsel] experienced a total lack of
communication preventing an adequate defense.” Id.
Application of these factors convinces us that there
was no abuse of discretion. The motion was timely, as it was
made almost one month before 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 twenty-
three days before trial was timely). As previously stated, the
court conducted a lengthy colloquy in order to decide the
7
motion. Finally, there is nothing in the record to suggest a
breakdown 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. United States v. Johnson, 114
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 of the Guideline].” U.S.
Sentencing Guidelines Manual § 3B1.1(c) (2008). We review
sentencing adjustments based on a defendant’s role in the
offense for clear error. 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 “everything” and instructed him to climb into the
trunk of the car. Norfleet clearly held a leadership role
during the commission of the offense.
8
IV
In his pro se brief, Norfleet asserts that the jury
instructions on Count Five (charging the § 924(c) violation)
constructively amended that Count. Having carefully compared
the indictment with the jury instructions, we conclude that
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. We therefore
affirm. This court requires that counsel inform his client, in
writing, 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
state that a copy was served on the client. We dispense with
oral argument because the facts and legal contentions are
9
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
10