[NOT FOR PUBLICATION - NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1809
UNITED STATES,
Appellee,
v.
MALCOLM DEDRICK, a/k/a MARK WILSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Schwarzer,* Senior District Judge.
Jean M. Terranova, on brief for appellant.
Patrick M. Hamilton, with whom Donald K. Stern, United States
Attorney, and Jennifer H. Zacks, were on brief, for appellee.
* Of the Northern District of California, sitting by designation.
June 12, 2001
-2-
SCHWARZER, Senior District Judge. Malcolm Dedrick appeals
the judgment of conviction and sentence, entered upon his plea of
guilty to two counts of distribution of crack cocaine in violation of
21 U.S.C. § 841(a). He raises four issues: (1) that the court erred
in sentencing him under the career offender guideline, UNITED STATES
SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 4B1.1; (2) that his sentence
resulted from ineffective assistance of counsel; (3) that the court
erred in failing to hold a competency hearing before accepting his
plea; and (4) that counsel’s failure to secure a mental health
evaluation constituted ineffective assistance of counsel.
APPLICATION OF THE CAREER OFFENDER GUIDELINE TO DEDRICK
Dedrick pled guilty to two counts of the indictment,
charging him with distribution of crack cocaine on two occasions,
April 16 and April 30, 1997. Because Dedrick had two prior state
felony convictions, the district court sentenced him as a career
offender under U.S.S.G. § 4B1.1.
Dedrick’s principal argument is that the court erred in
treating the prior state offenses as predicates of his criminal
history, rather than as relevant conduct. Had the court accepted his
Guideline application, he would have avoided application of U.S.S.G.
§ 4B1.1, which automatically placed him in criminal history category
VI instead of IV and increased his offense level. His somewhat
tortured argument proceeds from U.S.S.G. § 4A1.2, cmt. n.1
-3-
(“Definitions and Instructions for Computing Criminal History”),
which states that a “prior sentence” does not include a sentence “for
conduct that is part of the instant offense.” To bring himself
within this provision, Dedrick points to the conspiracy charged in
the indictment, which he says was established by stipulation and,
under U.S.S.G. § 1B1.2(c) (“Applicable Guidelines”), must therefore
be counted as an offense of conviction. As such, it would encompass
the drug offenses--the conduct on which the prior state convictions
were based--making them relevant conduct, rather than prior
convictions for purposes of U.S.S.G. § 4B1.1.
Ingenious as it may be, the argument will not hold water.
To begin with, the conspiracy charge was dismissed by the government.
The straw at which Dedrick grasps is the parties’ stipulation in the
plea agreement that the quantity of drugs attributable to Dedrick was
between 50 and 150 grams. But this amount, as noted in the district
court’s meticulous sentencing memorandum, is far in excess of the
amounts involved in the offenses to which he pled and for which he
was sentenced. Even if the larger amounts in the plea agreement
could be said to cover other offense conduct, there is nothing in the
agreement or the sentencing proceedings to suggest that Dedrick was
treated by the government or the court as having participated in a
conspiracy, much less as having stipulated to one. See, e.g., United
States v. Collar, 904 F.2d 441 (8th Cir. 1990) (holding that where
-4-
defendant stipulated to elements of two robberies dismissed by the
government, these offense were properly included in base offense
level calculation).
Once the conspiracy argument collapses, Dedrick’s attack
on the sentence fails. The commentary in the Relevant Conduct
guideline, U.S.S.G. § 1B1.3, specifically provides that “offense
conduct associated with a sentence that was imposed prior to the acts
. . . constituting the instant federal offense (the offense of
conviction) is not considered as part of the same course of conduct
or common scheme or plan as the offense of conviction.” This
guideline clearly precludes treatment of the prior state convictions
as relevant conduct in the instant case.
Dedrick contends that to the extent the foregoing argument
fails, he was denied the effective assistance of counsel. He argues
that counsel was ineffective in advising him to plead to the two
distribution counts and failing to ensure that the conspiracy charge
was included in the offense stipulation. We ordinarily review
ineffective assistance claims in collateral proceedings under 28
U.S.C. § 2255, rather than on direct appeal. See United States v.
Mala, 7 F.3d 1058, 1063 (1st Cir. 1993). We address the claim here,
however, because the record is complete and the facts are undisputed.
Dedrick’s ineffective assistance claim is without merit.
The district judge addressed the very issue in her sentencing
-5-
memorandum and concluded that offenses which resulted in sentences
prior to the commission of the instant offenses could not be
considered related. To the extent counsel advised Dedrick to enter
into the agreement to a much higher quantity of drugs than was
attributable to him under the offense of conviction, there was no
prejudice because the sentence was not based on the stipulated
quantity. Nor has Dedrick shown that his sentence would have been
lower had he stipulated to a lesser quantity of drugs. Without
demonstrating a reasonable probability that, but for counsel’s error,
the result of the proceedings would have been different, Dedrick’s
ineffective assistance claim fails. See López-Nieves v. United
States, 917 F.2d 645, 648 (1st Cir. 1990).
FAILURE TO ORDER A COMPETENCY EXAMINATION
Under 18 U.S.C. § 4241(a) (“Determination of Mental
Competency to Stand Trial”), the district court must order a
competency hearing “if there is reasonable cause to believe that the
defendant may presently be suffering from a mental . . . defect
rendering him mentally incompetent to the extent that he is unable to
understand the nature and consequences of the proceedings against him
or to assist properly in his defense.” Because no motion was made by
Dedrick below, we review for plain error. See United States v.
Girón-Reyes, 234 F.3d 78, 80 (1st Cir. 2000).
-6-
Dedrick contends that because the district court knew that
he had a “de facto” fifth-grade education and may be “borderline
retarded” and observed his confusion when asked whether he wished to
change his plea, failure to order a competency hearing was plain
error and violated Dedrick’s due process rights. For the same
reasons, he argues that counsel rendered ineffective assistance by
failing to secure a mental health examination.
We disagree. The circumstances described led the district
judge to take pains to ensure Dedrick’s rights were protected. The
judge inquired whether any collateral challenges to the prior
convictions were available to the defendant and counsel responded
that there were none that could be made. Counsel stated that
although Dedrick suffered from some degree of limited intelligence,
in discussing the prior convictions, he had assured counsel that he
felt he had been advised of his rights and that the proceedings had
been proper. When counsel advised the court that Dedrick may be
borderline retarded, the judge allowed counsel to consult with him.
Counsel then returned with Dedrick and, without further discussion,
the plea colloquy proceeded. While at one point, Dedrick showed
confusion over whether he wished to change his plea, after conferring
with counsel, he continued with the colloquy and responded
appropriately to the court’s questions. We are satisfied that the
district judge, after having been assured by Dedrick’s counsel that
-7-
“I don’t think he is retarded to a degree that he does not understand
the proceedings here,” did not abuse her discretion in accepting the
plea as knowing and voluntary and not ordering a competency hearing.
We recognize that a mentally retarded person may be
capable of understanding the nature and consequences of the
proceedings against him and yet be unable to assist properly in his
defense. See United States v. Duhon, 104 F. Supp. 2d 663, 666, 671
(E.D. La. 2000). There is no evidence that this is such a case.
Dedrick also fails to demonstrate that but for counsel’s failure to
secure a hearing, the course of the proceedings would have been
altered in his favor, e.g., that he would not have pled guilty. See
Hernández-Hernández v. United States, 904 F.2d 758, 761 (1st Cir.
1990). Accordingly, there is no basis for finding ineffective
assistance for counsel’s failure to move for a competency hearing.
AFFIRMED.
-8-