UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4044
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICKY LEE TYNDALL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, Chief
District Judge. (2:10-cr-00200-RBS-DEM-1)
Submitted: September 26, 2012 Decided: October 12, 2012
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Keith N. Hurley, KEITH N. HURLEY, P.C., Richmond, Virginia, for
Appellant. Cameron Rountree, Special Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Ricky Lee Tyndall pled
guilty to one count of interference with commerce by robbery, in
violation of the Hobbs Act, 18 U.S.C. §§ 2, 1951 (2006) (Count
Two), and two counts of using and carrying a firearm during and
in relation to a crime of violence, in violation of 18 U.S.C.
§§ 2, 924(c)(1)(A) & (B) (2006) (Counts Three and Five). The
district court sentenced Tyndall to 6 months on Count Two, 120
months on Count Three, and 300 months on Count Five, all to be
served consecutively, for a total sentence of 426 months’
imprisonment. Tyndall appealed.
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), finding no meritorious grounds
for appeal, but challenging the sufficiency of the evidence to
support Tyndall’s convictions and questioning whether he was
denied effective assistance of counsel. Tyndall filed a pro se
supplemental brief challenging his twenty-five year sentence on
Count Five. For the reasons that follow, we affirm.
Turning first to the sufficiency of the evidence,
“[a] Hobbs Act violation requires proof of two elements: (1)
the underlying robbery or extortion crime, and (2) an effect on
interstate commerce.” United States v. Williams, 342 F.3d 350,
353 (4th Cir. 2003). Count Two charged Tyndall and others with
robbing a 7-11 engaged in interstate commerce on September 29,
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2010. The Statement of Facts, which Tyndall signed and
acknowledged under oath as accurately representing his crimes,
provided that on September 29, 2010, Tyndall and two others
robbed a 7-11 while brandishing short-barreled shotguns, which
interfered with the store’s engagement in interstate commerce.
We conclude that the evidence was sufficient to support Tydall’s
Hobbs Act conviction.
Counts Three and Five charged Tyndall with violating
18 U.S.C. § 924(c)(1)(A). To support a conviction under
§ 924(c), the Government must establish two elements: “(1) the
defendant used or carried a firearm, and (2) the defendant did
so during and in relation to a drug trafficking offense or crime
of violence.” United States v. Mitchell, 104 F.3d 649, 652 (4th
Cir. 1997); United States v. Jeffers, 570 F.3d 557, 565 (4th
Cir. 2009). The Statement of Facts established that Tyndall
used and brandished short-barreled shotguns during the September
29, 2010, robbery of the 7-11 and during the robbery of a Family
Dollar store on October 1, 2010. We consider the Statement of
Facts sufficient to support Tyndall’s convictions on Counts
Three and Five.
Counsel also states in the formal brief that Tyndall
was denied effective assistance of counsel because his attorney
failed to properly inform him about the consequences of his
guilty plea and his right to a trial. Because the record does
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not conclusively show that counsel failed to provide effective
representation, Tyndall’s claim is not cognizable on direct
appeal. United States v. Benton, 523 F.3d 424, 435 (4th Cir.
2008).
Finally, in his pro se supplemental brief, Tyndall
contends that he was improperly sentenced on Count Five to a
twenty-five year term under 18 U.S.C. § 924(c)(1)(C) because the
indictment did not charge that he had previously been convicted
under that statute. This Court has held that the mandatory
consecutive sentencing scheme established in § 924(c) for
multiple convictions under the statute was not affected
by United States v. Booker, 543 U.S. 220 (2005). United States
v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005). Further, this
Court has concluded that the sentencing enhancements under
§ 924(c)(1)(C) for successive § 924(c) convictions fall within
the prior convictions exception to the rule announced
in Apprendi v. New Jersey, 530 U.S. 466 (2000), and thus are not
required to be alleged in the indictment. United States v.
Cristobal, 293 F.3d 134, 146-47 & n.20 (4th Cir. 2002).
Accordingly, Tyndall’s argument is unavailing.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm. Counsel’s request to withdraw
from representation is denied. This Court requires that counsel
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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 of the motion was served
on his client. 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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