United States of America v. David Allen Tindall

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4428
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID ALLEN TINDALL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (CR-03-227)
Submitted: February 28, 2006 Decided: April 10, 2006
Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ann Briks Walsh, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Jonathan S. Gasser, United States
Attorney, Alston Calhoun Badger, Jr., Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Pursuant to a written plea agreement, David Allen Tindall
pled guilty to two counts of brandishing a firearm in furtherance
of a crime of violence, in violation of 18 U.S.C.A.
§ 924(c)(1)(A)(ii) (West Supp. 2005). The district court sentenced
him to a seven-year term on the first conviction, and, on the
second conviction, a consecutive thirteen-year term, which was the
result of the government’s motion for a downward departure from the
twenty-five year sentence mandated by the statute. Tindall’s
attorney has filed an appeal brief in accordance with Anders v.
California, 386 U.S. 738 (1967), challenging the validity of the
guilty plea and the propriety of Tindall’s sentence. At the
direction of the court, Tindall and the government filed
supplemental briefs addressing the validity of the sentence under
United States v. Booker, 543 U.S. 220 (2005). Tindall asserted
additional claims in his pro se supplemental brief. For the
reasons that follow, we affirm Tindall’s convictions and sentence.
We find that Tindall’s guilty plea was knowingly and
voluntarily entered after a thorough hearing pursuant to Fed. R.
Crim. P. 11. He was properly advised of his rights, the offenses
charged, the maximum sentence for the offense, and the mandatory
minimum sentences applicable. The court also determined that
Tindall intended to plead guilty to brandishing, that there was an
independent factual basis for the plea, and that the plea was not

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coerced or influenced by any promises. See North Carolina v.
Alford, 400 U.S. 25, 31 (1970); United States v. DeFusco, 949 F.2d
114, 119-20 (4th Cir. 1991).
Tindall challenges his sentence pursuant to United States
v. Booker, which was decided while his appeal was pending. He
first contends that he was improperly subject to the seven-year
mandatory minimum sentence based on the determination that he
“brandished” the firearm in relation to his conviction on count 2
of the indictment. Specifically, Tindall argues that, because the
indictment did not charge brandishing, his sentence was improperly
enhanced, in violation of Apprendi v. New Jersey, 530 U.S. 466
(2000), and Booker. We note that Tindall expressly admitted to,
and pled guilty to, brandishing the firearm. Thus, the district
court’s reliance on facts admitted by Tindall does not implicate
the problems with judicial factfinding that Booker identified. See
United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). We
find no error in the application of the seven-year mandatory
sentence on count 2.
Next, Tindall contends that, because count 4 of the
indictment did not charge that it was a second or subsequent
conviction, the twenty-five-year mandatory minimum sentence should
not have been applied. In United States v. Cristobal, 293 F.3d
134, 146-47 (4th Cir. 2002), we rejected this same challenge to the
enhanced sentence imposed for a “second or subsequent conviction,”

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finding it to fall within the prior conviction exception. Id. at
147, n.20 (citing Deal v. United States, 508 U.S. 129, 133 (1993));
see also Almendarez-Torres v. United States, 523 U.S. 224, 233-35
(1998).
In his pro se brief, Tindall asserts that he asked his
attorney to arrange for a bond hearing, a suppression hearing to
assert that his confession was given under duress, a pre-trial
conference to discuss the plea agreement, and an independent
psychiatric evaluation, but that his attorney did not request any
of these things. He contends that his mental health at the time of
the crimes should have been explored further. He states that
because of his attorney’s failure to pursue the issues he asserted,
he “was coerced into accepting a plea that [he] wasn’t comfortable
with.”
To the extent that Tindall challenges the validity of his
plea, his bare statement that he was not satisfied with the plea is
insufficient to overcome the strong presumption that the plea is
final and binding. See United States v. Lambey, 974 F.2d 1389,
1394 (4th Cir. 1992). Tindall’s remaining claims are assertions
that his attorney provided ineffective assistance. Claims of
ineffective assistance of counsel are not cognizable on direct
appeal unless the record conclusively establishes ineffective
assistance. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999). Our review of the record reveals that Tindall has

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failed to meet the high burden necessary to raise ineffective
assistance of counsel claims on direct appeal.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Tindall’s convictions and sentence. We deny his motion to
relieve counsel at this time. This court requires that counsel
inform her client, in writing, of the 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 thereof was served on the 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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