United States v. Arnold Sylvester Lindsay, Jr.

238 F. App'x 582
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 7, 2007
Docket06-14529
StatusUnpublished

This text of 238 F. App'x 582 (United States v. Arnold Sylvester Lindsay, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Arnold Sylvester Lindsay, Jr., 238 F. App'x 582 (11th Cir. 2007).

Opinion

PER CURIAM:

Arnold Lindsay appeals his conviction for knowingly possessing a firearm that had an obliterated serial number, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B), and the 420-month sentence he received after he pled guilty to four counts of being a felon in possession of a firearm or ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); two counts of delivering a firearm or ammunition to a juvenile, in violation of 18 U.S.C. §§ 922(x)(l) and 924(a)(6)(B); one count of possessing a firearm that had an obliterated serial number, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B); and one count of discharging a firearm in a school zone, in violation of 18 U.S.C. §§ 922(q)(2) and (3) and 924(a)(1)(B) and (a)(4). On appeal, Lindsay raises three claims. First, he argues that there was no factual basis to support his guilty plea to possessing a firearm (a Lorcin .380 caliber semiautomatic handgun) that had an obliterated serial number, a violation of 18 U.S.C. § 922(k), because, at the plea colloquy, he denied knowing of the obliteration. Second, Lindsay claims that the district court erred at sentencing by providing an insufficient explanation to support a Guidelines-departure sentence, under U.S.S.G. § 4A1.3. Finally, he challenges the reasonableness of the district court’s imposition of an upward variance from a Guidelines *584 range of 168 to 210 months’ imprisonment to a 420-month term of imprisonment. After thorough review of the record and careful consideration of the parties’ briefs, we affirm.

I.

The facts relevant to our analysis are these. On February 23, 2006, Lindsay was indicted on four counts of being a felon in possession of a firearm or ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Counts 1^1); two counts of delivering a firearm or ammunition to a juvenile, in violation of 18 U.S.C. §§ 922(x)(l) and 924(a)(6)(B) (Counts 5 and 6); one count of possessing a firearm that had an obliterated serial number, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B) (Count 7); and one count of discharging a firearm in a school zone, in violation of 18 U.S.C. §§ 922(q)(2) and (3) and 924(a)(1)(B) and (a)(4) (Count 8). The charges arose out of Lorcin’s possession of ammunition for various types of guns, including a Remington 9mm, a Winchester .380 caliber, and a Lorcin .380 caliber, and possession of a Lorcin .380 caliber semiautomatic handgun. On the eve of trial, Lindsay pled guilty to the charges against him, without the benefit of a written plea agreement.

During the subsequent plea colloquy, the district court first confirmed that Lindsay: understood the plea proceedings; was not under the influence of drugs or alcohol; did not suffer from a mental or emotional illness; understood his constitutional rights associated with a trial by jury and his waiver of those rights; and understood his right to appeal his guilt and his waiver of that right. The court then instructed Lindsay: “If I accept your plea, you must understand you won’t be able to change your mind later and withdraw the plea. This is the time to make that decision, and it will be binding upon you. Do you understand that?” Lindsay indicated that he understood.

The government then made its factual proffer in support of the plea. As part of the proffer on Count 7 of the indictment, which charged that Lindsay possessed “a Lorcin .380 caliber ..., knowing that the manufacturer’s serial number had been removed and obliterated from the firearm,” the government stated: “That handgun had an obliterated serial number. Each of the numbers on that handgun had been drilled out with a drill bit, ... and the defendant did know the serial number on that firearm has been drilled out prior to his possession.” The government also proffered that its evidence at trial would include: “a number of witnesses that would testify that the firearm was, in fact, the defendant’s Lorcin .380 and that he had left it at Alex Burkholter’s home to come and retrieve it on other occasions. We have other witnesses, Your Honor, that would testify to him being in possession of the firearm on various other instances and those could be provided as 404(b) notice to the defendant.”

The government’s proffer prompted the following exchange:

[Lindsay’s Attorney]: Judge, [Lindsay] was talking about that he didn’t really know that the obliterated serial number was there, but I explained to him that it could be a real knowledge that he knew or should have known that it was obliterated by close examination. That’s the way I explained it to him. He said he really didn’t — wasn’t aware of the obliterated serial number at the time, that the gun was retrieved.
The Court: But you do acknowledge that you were in possession of that gun? Lindsay: Yes, sir, I understand that, but I was just confused because, know what I’m saying. She got the people that’s going to come and say they seen the *585 gun, but just like them, I bet ain’t nobody going to say they knew that that gun was like that. I couldn’t even really see it. The police when they first took us to jail, they ain’t even noticed it, you know. He brought it to my attention. He was like putting me in the car and we went around the corner — when he was around the corner, he was like, you know what I’m saying, and he’s like saying upon close look, he was like — but that’s probably their job to look for that. I wasn’t even-it don’t matter. I’m pleading.
The Court: Other than that, are all the other facts correct?
Lindsay: Yes, sir.
The Court: Did you do what the government says that you did?
Lindsay: Yes, sir. I’m plea[d]ing. I’m cop[p]ing out.

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Bluebook (online)
238 F. App'x 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-arnold-sylvester-lindsay-jr-ca11-2007.