UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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