UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4388
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROY MELVIN HOPKINS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District
Judge. (1:06-cr-00311-BEL-1)
Submitted: April 16, 2010 Decided: May 28, 2010
Before TRAXLER, Chief Judge, and NIEMEYER and KING, Circuit
Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Sicilia Chinn Englert, LAWLOR & ENGLERT, LLC, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Christopher Mason, Special Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roy Melvin Hopkins appeals his conviction and 100-
month sentence for one count of possession of a firearm after a
felony conviction in violation of 18 U.S.C. § 922(g) (2006).
For the reasons that follow, we affirm in part, vacate in part,
and remand.
Hopkins, who pled guilty without the benefit of a plea
agreement, challenges his conviction on the ground that the
district court, in conducting its Fed. R. Crim. P. 11 colloquy,
did not take adequate steps to ensure he was competent to enter
a plea of guilty. As the colloquy commenced, the district court
asked the following series of questions:
Q: Have you ever been treated for narcotics
addiction or mental illness, sir?
A: Yes.
Q: And which of those applies?
A: Mental.
Q: And are you now on a medication?
A: Yes.
Q: And which medication is that, sir?
A: Like six different medications. I can’t
pronounce them.
Q: So that you’re taking a number of drugs?
A: Yes.
Q: And –
2
A: Yes.
Q: And did you take some earlier today?
A: Yes.
Q: And do these drugs help you, help you, or do
they make you feel out of it, so to speak?
A: They help me a little bit.
Q: As we sit here today, are you able to follow
me?
A: Yes.
Hopkins argues that his indication that he was on medications,
coupled with his demeanor during the proceedings, should have
caused the court to conduct a more lengthy inquiry into his
competence. We disagree.
Because Hopkins did not move to withdraw his plea, we
review for plain error. See United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). To establish plain error, Hopkins
must show that: (i) an error occurred; (ii) the error is plain;
and (iii) the error affected his substantial rights. See United
States v. Smith, 441 F.3d 254, 271 (4th Cir. 2006). Prior to
accepting a defendant’s guilty plea, it is the responsibility of
the court to determine that the defendant is competent to enter
the plea. See United States v. Damon, 191 F.3d 561, 564
(4th Cir. 1999). With a medicated defendant, a court should
ascertain the effect, if any, of the medication on the
defendant’s ability to make a knowing and voluntary plea. See
3
id. (finding error in the district court’s failure to determine
the effect of defendant’s medication on defendant’s ability to
enter a voluntary plea).
Here, we find that the district court conducted an
appropriate inquiry into the effect of Hopkins’s medication. In
light of the whole record, we find that the court did not
plainly err in conducting its colloquy. We therefore affirm
Hopkins’s conviction.
Hopkins challenges his 100-month sentence on the basis
that the district court impermissibly accorded a presumption of
validity to a within-Guidelines sentence. During sentencing,
the district court said the following: “The sentencing
guidelines are no longer mandatory. They are merely advisory.
. . . Under the Fourth Circuit case law, the Advisory Guideline
sentence is presumptively reasonable, and the judge must have a
good reason rooted in the statute for imposing a variant
sentence.”
Despite the district judge’s explanation that he was
aware the Guidelines were advisory, his application of a
presumption of reasonableness to a sentence within the Guideline
range was in error. The Supreme Court has explicitly cautioned
that the presumption of reasonableness “is an appellate court
presumption . . . . [T]he sentencing court does not enjoy the
benefit of a legal presumption that the Guidelines sentence
4
should apply.” Rita v. United States, 551 U.S. 338, 351 (2007).
Further, the Court recently confirmed that a district court’s
erroneous treatment of the Guidelines range as presumptively
reasonable is not cured by recognition that the Guidelines are
advisory:
In this case, the Court of Appeals quoted the
above language from Rita but affirmed the sentence
anyway after finding that the District Judge did not
treat the Guidelines as mandatory. That is true, but
beside the point. The Guidelines are not only not
mandatory on sentencing courts; they are also not to
be presumed reasonable. We think it plain from the
comments of the sentencing judge that he did apply a
presumption of reasonableness to [the defendant]’s
guideline range. Under our recent precedents, this
constitutes error.
Nelson v. United States, 129 S. Ct. 890, 892 (2009). We
conclude here that the district court improperly applied a
presumption of reasonableness to the advisory Guidelines range,
and for that reason, we vacate Hopkins’s sentence and remand for
new sentencing.
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 IN PART,
VACATED IN PART,
AND REMANDED
5