UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4364
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDWARD TYRONE PIPKIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:05-cr-01129-TLW-2)
Submitted: January 5, 2012 Decided: February 9, 2012
Before KING, SHEDD, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ronald R. Hall, West Columbia, South Carolina, for Appellant.
Carrie Fisher Sherard, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward Tyrone Pipkin was found guilty of participating
in a conspiracy to distribute or possess with intent to
distribute fifty or more grams of cocaine base and five or more
kilograms of cocaine in violation of 21 U.S.C. § 846 (2006),
attempted robbery in violation of 18 U.S.C. §§ 1951(a), 2
(2006), use or carry of a firearm in furtherance of a drug
trafficking crime and brandishing a firearm in furtherance of a
crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A), 2
(2006), and possession of a firearm by a convicted felon in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), (e) (2006). He
was sentenced to a cumulative custodial sentence of 444 months.
We affirm.
On appeal, Pipkin’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967). Although Pipkin’s
counsel states that he can find no meritorious issues for
appeal, the brief filed on Pipkin’s behalf seeks our review of
the district court’s treatment of Pipkin’s request for new
counsel and Pipkin’s sentence. Pipkin filed a pro se
supplemental brief asserting his discontentment with his trial
counsel as well as other issues.
We review a district court’s ruling on a motion to
substitute counsel for abuse of discretion. United States v.
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Perez, 661 F.3d 189, 191 (4th Cir. 2011). Although the Sixth
Amendment protects an indigent defendant’s right to be
represented by counsel, “[a]n indigent defendant can demand a
different appointed lawyer only with good cause.” Id. (internal
quotation marks omitted). We consider three factors in
reviewing denials of motions to substitute counsel: (1) the
“[t]imeliness of the motion;” (2) the “adequacy of the court’s
inquiry into the defendant’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.”
United States v. Mullen, 32 F.3d 891, 895 (4th Cir. 1994)
(internal quotation marks omitted). These factors are balanced
“against the district court’s interest in the orderly
administration of justice.” Perez, 661 F.3d at 191 (internal
quotation marks omitted).
We perceive no abuse of discretion on the part of the
district court. Although the record discloses that Pipkin was
dissatisfied with his trial counsel during portions of the
representation, the record also discloses that the district
court adequately inquired into the relationship and found no
breakdown of communication. Partway through the trial, Pipkin
informed the court that he thought counsel was doing a “pretty
good job” and affirmed his desire to proceed with the trial
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without a change of counsel. To the extent that Pipkin alleges
ineffective assistance of counsel in his supplemental brief, we
decline to entertain such allegations on direct appeal because
our review of the record uncovers no conclusive displays of such
ineffective assistance. United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999).
We review a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). The first step in this review requires us to inspect
for procedural reasonableness by ensuring that the district
court committed no significant procedural errors, such as
failing to calculate or improperly calculating the Guidelines
range, failing to consider the 18 U.S.C. § 3553(a) (2006)
factors, or failing to adequately explain the sentence. United
States v. Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010). We
then consider the substantive reasonableness of the sentence
imposed, taking into account the totality of the circumstances.
Gall, 552 U.S. at 51. We presume that a sentence within a
properly-calculated Guidelines range is reasonable. United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). That
presumption may be rebutted by a showing “that the sentence is
unreasonable when measured against the § 3553 factors.” United
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States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006)
(internal quotation marks omitted).
Our review of Pipkin’s sentencing discloses one
procedural error. The district court incorrectly stated that
the Guidelines range for Pipkin’s attempted robbery conviction
was 360 months to life when in fact it was the statutory maximum
of 240 months. However, Pipkin was sentenced to 240 months for
the attempted robbery, to run concurrently with two other
sentences of 360 months’ imprisonment. We review for plain
error because Pipkin did not object to the erroneous Guidelines
calculation. See United States v. Lynn, 592 F.3d 572, 577-78
(4th Cir. 2010). Because the procedural error is irrelevant to
the time Pipkin will serve in prison, it does not affect his
substantial rights. See United States v. Ellis, 326 F.3d 593,
600 (4th Cir. 2003). Thus, we decline to find that the district
court’s misstatement rises to the level of plain error.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Pipkin, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Pipkin requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
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counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Pipkin.
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
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