United States v. Michelle Hebron

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4748

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

MICHELLE HEBRON, a/k/a Michelle Hell, a/k/a BG,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(1:08−cr−00086−WDQ−16)

Submitted: July 21, 2011 Decided: August 11, 2011

Before KING and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Raymond J. Rigat, Washington, D.C., for Appellant. Rod J.
Rosenstein, United States Attorney, Christopher M. Mason,
Special Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Michelle Hebron appeals her conviction and 360 month

sentence on one count of conspiracy to participate in a

racketeering enterprise in violation of 18 U.S.C. § 1962.

Hebron, who pled guilty to the offense, raises three claims of

error on appeal. First, she alleges that the district court

abused its discretion when it failed to conduct a competency

hearing. Second, she claims that the district court abused its

discretion when it accepted her guilty plea. Finally, she

contends that the district court abused its discretion when it

denied her motion to withdraw her guilty plea prior to

sentencing. Finding no merit in Hebron’s contentions, we affirm

for the reasons that follow.

I. Competency Hearing

Neither Hebron nor the government requested a competency

hearing at any point in the proceedings before the district

court. A district court shall sua sponte order a competency

hearing “if there is reasonable cause to believe that the

defendant may presently be suffering from a mental disease or

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.”

18 U.S.C. §4241(a). This court has noted that “[i]n determining

2
whether there is reasonable cause to order a competency hearing,

a trial court must consider all evidence before it, including

evidence of irrational behavior, the defendant’s demeanor at

trial, and medical opinions concerning the defendant’s

competence.” United States v. Mason, 52 F.3d 1286, 1290 (4th

Cir. 1995). We review a district court’s failure to sua sponte

order a competency hearing for abuse of discretion. United

States v. Banks, 482 F.3d 733, 742 (4th Cir. 2007).

Here, Hebron is unable to point to examples of irrational

behavior, a demeanor that raised questions regarding her

competence, medical opinions addressing her competence, or any

other evidence that would give rise to reasonable cause to

believe that she failed to comprehend the nature of the

proceedings against her or was unable to assist in her own

defense. Because Hebron fails to show reasonable cause that

would require the district court to order a competency hearing,

we refuse to find that the district court abused its discretion

in failing to do so.

During the Rule 11 colloquy, the district judge asked

questions to determine whether Hebron was capable of

understanding the proceedings and the plea agreement.

Specifically, the judge ensured that Hebron understood the

English language and understood the nature of the charge to

which she was pleading guilty and the maximum possible

3
penalties. After Hebron made the district judge aware of her

mental health history of schizophrenia and hallucinations, the

judge carefully ensured that Hebron was taking her medications

nightly as prescribed, and determined that she had taken her

prescribed doses the night previous. The judge also asked

questions of Hebron’s attorney regarding his interactions with

Hebron. Hebron’s attorney stated that he had met with Hebron

nine times and had at least five phone calls with her and

assured the judge that Hebron had not said or done anything to

raise concerns about her ability to understand the proceedings.

Hebron’s attorney noted that he had promised Hebron that he

would request a medical evaluation prior to sentencing. Although

Hebron’s attorney requested that the judge order a medical

evaluation prior to sentencing, her attorney did not raise any

questions or concerns regarding Hebron’s competency to enter

into a plea agreement. While the decision by Hebron’s attorney

to request a medical evaluation prior to sentencing and not to

request a competency hearing despite his knowledge of her mental

health history is not dispositive, it does provide a strong

indication that Hebron’s attorney did not have doubts about

Hebron’s competency.

In Mason, we found that the district court had abused its

discretion in failing to order a competency hearing where the

court had before it evidence of Mason’s pre-trial suicide

4
attempt, initial medical reports raising concerns about the

defendant’s competence, and affidavits from Mason’s counsel

attesting to Mason’s doctors’ belief that Mason was incompetent.

52 F.3d at 1293. The court there found that the facts “clearly

gave rise to reasonable cause to believe the defendant may have

been incompetent” and remanded for a retrospective determination

of Mason’s competence. Id. Here, unlike in Mason, there is no

medical evidence of incompetency and no evidence raising

questions concerning Hebron’s ability to understand what was

happening.

The responses of Hebron and her attorney during the

colloquy demonstrate that she was capable of consulting with her

attorney and understood the nature of the proceedings against

her. See United States v. General, 278 F.3d 389, 395-96 (4th

Cir. 2002) (“The test for determining competency is whether ‘[a

defendant] has sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding . . .

and whether he has a rational as well as a factual understanding

of the proceedings against him.’”) (citations omitted)

(alterations in original). Hebron fails to show that reasonable

cause existed to raise doubts about her competency to enter into

a guilty plea, and we reject her claim that the district court

abused its discretion by failing to order a competency hearing

prior to accepting her plea.

5
II. Acceptance of Plea

In addition to her procedural claim that the district court

abused its discretion in failing to conduct a competency

hearing, Hebron also raises a substantive competency claim. A

defendant raising a substantive claim that he was not competent

to be convicted “must demonstrate his incompetency by a

preponderance of the evidence.” Beck v. Angelone, 261 F.3d 377,

388 (4th Cir. 2001). The test for determining competency, as set

forth by the Supreme Court, is whether a defendant “has

sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding—and whether he has a

rational as well as a factual understanding of the proceedings

against him.” Dusky v. United States, 362 U.S. 402, 402 (1960)

(internal quotation marks omitted). We review a district court’s

determination that a defendant is competent to enter a guilty

plea for abuse of discretion. United States v. Moussaoui, 591

F.3d 263, 291 (4th Cir. 2010).

Hebron argues that the district court violated her

substantive due process rights when it accepted her plea despite

having been made aware of her long-term mental illness, the fact

that she was taking several psychotropic medications at the time

of her plea, and the fact that her attorney had requested a

medical evaluation during the plea colloquy. This court has

explained, however, that “‘[n]ot every manifestation of mental

6
illness demonstrates incompetence to stand trial; rather, the

evidence must indicate a present inability to assist counsel or

understand the charges.’” Burket v. Angelone, 208 F.3d 172, 192

(4th Cir. 2000) (quoting United States ex rel. Foster v.

DeRobertis, 741 F.2d 1007, 1012 (7th Cir. 1984)). In addition,

we have emphasized that “the fact that the petitioner has been

treated with anti-psychotic drugs does not per se render him

incompetent to stand trial.” Id. Moreover, the fact that

Hebron’s attorney requested a medical evaluation weighs against

Hebron’s claim here, as her attorney specifically requested an

evaluation prior to sentencing, a strong suggestion that he

intended to use the results to present mitigating circumstances

at sentencing and was not concerned with competency issues at

the time of the plea. Hebron’s reliance on her mental illness to

support her substantive competence claim fails to demonstrate an

abuse of discretion by the district court in accepting her plea,

particularly in light of the extensive inquiry into the

voluntariness and intelligence of her decision by the district

court.

As discussed in detail supra, the district court here

conducted a thorough Rule 11 colloquy. There is nothing in the

record to reflect that Hebron was unable to communicate

effectively with her attorney or that she failed to understand

the consequences of her guilty plea. Among the issues

7
established during the plea colloquy and while Hebron was under

oath included the following:

(1) That Hebron was satisfied with the representation of

her counsel;

(2) That Hebron understood the elements of and maximum

penalties for the crime to which she was pleading guilty;

(3) That Hebron understood she had the right to plead not

guilty, but that by pleading guilty she was foregoing

certain rights, including the right to a jury trial;

(4) That Hebron’s decision to plead guilty was not the

result of any threats or promises and was the result of her

own free will and because she was guilty;

(5) That Hebron agreed that she had read and agreed to the

terms of the plea agreement and the stipulated facts

attached to it.

Throughout this colloquy, the district judge had an

opportunity to observe Hebron’s demeanor and tone in response to

these questions before deciding to accept her plea as knowing

and voluntary. In Beck, we refused to disturb the trial court’s

conclusion that the defendant was competent to plead guilty. 261

F.3d at 383, 392. In that case, the trial court relied upon an

extensive plea colloquy during which the defendant was “clear

and responsive” in expressing his understanding of the nature of

the charges against him, his waiver of certain rights by

8
entering a guilty plea, and the voluntariness of his decision.

Id. at 388. Moreover, Beck did “nothing to lead his counsel or

the state trial court to question his competency” and none of

the mental health experts that examined him “indicated that Beck

was incompetent to stand trial or assist in his defense.” Id. at

388-89. Similar facts obtain here, and the district court thus

acted well within its discretion in concluding Hebron was

competent to enter a guilty plea.

III. Denial of Motion to Withdraw Plea

This court reviews a district court’s denial of a motion to

withdraw a plea for abuse of discretion. United States v. Moore,

931 F.2d 245, 248 (4th Cir. 1991). A defendant is permitted to

withdraw a guilty plea if she can “show a fair and just reason

for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). We

have instructed district courts to consider six factors in

determining whether a defendant has met this burden: (1) whether

the defendant has offered credible evidence that her plea was

not knowing or not voluntary; (2) whether the defendant has

credibly asserted her legal innocence; (3) whether there has

been a delay between the entering of the plea and the filing of

the motion to withdraw the plea; (4) whether the defendant has

had the close assistance of competent counsel; (5) whether

withdrawal will cause prejudice to the government; and (6)

9
whether it will inconvenience the court and waste judicial

resources. Moore, 931 F.2d at 248.

Prior to sentencing, Hebron sent several letters to the

court requesting leave to withdraw her guilty plea. In her first

three letters, Hebron wrote that her decision to enter a guilty

plea had been based on a “misunderstanding,” claiming her

attorney had told her the sentencing range in the plea agreement

was 200-260 months. Hebron claimed she would have not have

agreed to the plea if she had known her sentencing range was

300-360 months. In her fourth letter to the court, Hebron

acknowledged that the sentencing range she had agreed to was

300-360 months, but claimed she was not responsible for Moore’s

murder and requested a more lenient sentence. During her

sentencing hearing, Hebron’s attorney raised the issue of

Hebron’s desire to withdraw her plea, though he stated his

understanding that she wished to withdraw her motion to withdraw

her plea. Upon questioning by the district judge, however,

Hebron reiterated her wish to withdraw her plea and go to trial.

When the district court judge asked Hebron if she had anything

to add to the reasons provided in her letters to the court in

support of her motion, Hebron stated that she had “nothing else

to say besides what I wanted to in the letters.”

The district court denied Hebron’s motion, setting out the

reasons for its denial in a Memorandum Opinion dated June 28,

10
2010. Applying the legal standard set forth in Moore, the

district court concluded that the third factor—the extent of

delay between the plea and the motion—weighed in Hebron’s favor,

but noted that “the other factors militate against permitting

withdrawal.” With respect to the first Moore factor, the

district court found that Hebron had not offered any evidence to

show that her plea was not knowing or voluntary, refusing to

credit Hebron’s claim that she did not know the actual

sentencing range was 300-360 months in light of the text of the

agreement and the fact that both she and her attorney signed it.

The district court found that Hebron failed to credibly assert

her innocence—the second Moore factor—noting that her final

letter “neither contradicts the stipulated facts establishing

her guilt nor offers evidence supporting her innocence.” The

district court also weighed the fourth Moore factor against

Hebron, finding that Hebron “had the close assistance of

competent counsel, who has shown exemplary patience and skill in

dealing with her” and noting that Hebron herself expressed

satisfaction with her attorney’s services during her

rearraignment. Because allowing Hebron to withdraw her plea

would require her inclusion in yet another trial group from the

multi-defendant indictment, the district court also counted the

fifth and sixth Moore factors against Hebron, concluding that

granting Hebron’s motion would “prejudice the Government and

11
inconvenience the Court.” The district court concluded that

Hebron had failed to meet her burden of demonstrating a “fair

and just reason for withdrawing her plea” and denied the motion.

On appeal, Hebron contends that the district court abused

its discretion when it denied her motion to withdraw her guilty

plea because it improperly weighed the fourth, fifth, and sixth

Moore factors against her and because it failed to take into

account the effects of her mental illness on the intelligence

and voluntariness of her plea. Because Hebron’s arguments are

not supported by the facts in the record, she fails to show that

the district court abused its discretion in denying her motion.

Hebron argues that the evidence of her mental illness

presented before the district court suggested a “strong

possibility” that her plea was not knowing or voluntary. Br. of

Appellant 22-23. She contends that the nature of her illness,

the medications she was prescribed, and the quality of her

letters to the court should have suggested to the district court

that she was not competent to enter a guilty plea or to be

sentenced. However, as discussed in more detail supra, Hebron’s

claims of incompetence are not borne out by the record, and the

district court conducted a thorough Rule 11 colloquy to ensure

Hebron understood the nature and consequences of her plea before

deciding to accept it. Moreover, even after Hebron underwent a

full medical evaluation prior to sentencing, her attorney did

12
not raise questions regarding her competency, limiting his use

of the results to argue that Hebron’s history and mental illness

“does weigh on what type of sentence she should be receiving.”

Accordingly, the district court properly weighed the first

factor against Hebron.

Hebron suggests on appeal that her mental illness should

count in her favor with respect to the second Moore factor,

noting that the “history and extent of her illness also begs the

question whether Hebron was legally guilty of the crime charged

by reason of insanity.” Br. of Appellant 23. This contention is

without merit. Not only did Hebron’s trial counsel not raise any

concerns regarding Hebron’s competency before the trial court,

but, as the government points out, Hebron stipulated to facts

that suggest she was able “to appreciate the nature and quality

or the wrongfulness of [her] acts.” Br. of Appellee 37, n.10

(quoting 18 U.S.C. §17 (codifying requirements of insanity

defense)). The second Moore factor does not weigh in favor of

Hebron’s motion.

Arguing that there was a “breakdown in communication” with

her attorney, Hebron also contends that she “may not have had

the close assistance of counsel.” Br. of Appellant 23. In

support, Hebron points to the fact that her attorney thought

Hebron intended to withdraw her motion to withdraw her plea at

her sentencing hearing, Hebron’s complaints to the district

13
court regarding the “misunderstanding” she had with her attorney

regarding the sentencing range in the plea agreement, and the

fact that her attorney failed to request a competency hearing

prior to Hebron’s entering into a plea agreement. However, the

record also includes evidence of Hebron’s cooperation and

satisfaction with her trial counsel. During the Rule 11

colloquy, Hebron expressed her satisfaction with her attorney’s

representation. In her final letter to the district court,

Hebron recanted her statement that her attorney had

misrepresented the sentencing range in the plea agreement.

Moreover, during the sentencing hearing, Hebron’s attorney

stated that her decision to attempt to withdraw her plea was

“different,” but denied that he was surprised by her choice. On

balance, it simply cannot be said that the district court abused

its discretion in weighing this factor against Hebron’s request

to withdraw her plea.

Finally, Hebron argues that the district court improperly

weighed the fifth and sixth Moore factors against her because

there was a group of her co-defendants already scheduled to go

to trial in December 2010. This argument fails to appreciate the

need for the government to allocate additional resources to the

December trial if Hebron were to be included in the group of

defendants and the need for the trial court to cope with

additional evidence and witnesses, but it is unclear how

14
strongly these factors weigh against Hebron. Nonetheless, taken

together, the Moore factors do not provide Hebron with a “fair

and just” reason for withdrawing her plea, and the district

court did not abuse its discretion when it denied her motion to

withdraw her plea.

IV. Conclusion

Accordingly, we affirm the judgment of the district court.

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