United States v. Dwayne Frazier

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4462

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DWAYNE FRAZIER,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:11-cr-00095-MJG-2)

Argued: March 20, 2014 Decided: June 20, 2014

Before TRAXLER, Chief Judge, MOTZ, Circuit Judge, and Max O.
COGBURN, Jr., United States District Judge for the Western
District of North Carolina, sitting by designation.

Affirmed by unpublished opinion. Judge Cogburn wrote the
opinion, in which Judge Motz joined. Chief Judge Traxler wrote
a separate concurring opinion.

ARGUED: Doug Keller, Washington, D.C., for Appellant. John
Walter Sippel, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
COGBURN, District Judge:

Dwayne Frazier pled guilty to one count of carjacking in

contravention of 18 U.S.C. § 2119 and received a sentence of 144

months imprisonment. Frazier challenges his conviction, arguing

that the district court erred by declining to hold a competency

hearing after defense counsel raised concerns regarding

Frazier’s ability to aid in his own defense at trial. Frazier

also contends that the district court committed reversible error

by failing to apply the proper sentencing standard and by

failing to independently exercise its sentencing discretion

before accepting Frazier’s plea. For the reasons that follow,

we affirm.

I.

In January of 2012 a grand jury in the District of Maryland

returned a six-count superseding indictment against Frazier and

a co-defendant (“the indictment”). The indictment alleged the

following charges: a conspiracy to commit carjacking, in

violation of 18 U.S.C. § 371; two substantive carjacking counts,

in violation of 18 U.S.C. § 2119; two counts of possession and

brandishing of a firearm in furtherance of a crime of violence,

in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and possession of

a firearm by a convicted felon, in violation of 18 U.S.C. §

922(g).

2
 A.

The Friday before Frazier’s trial was to begin, defense

counsel filed a letter under seal with the district court

detailing his concerns regarding his client’s competency to

proceed to trial. Among defense counsel’s concerns were

Frazier’s ability to “understand the pros and cons of trial

versus a plea”; “to assist in his defense”; and to

“intelligently elect whether to testify or not.” S.J.A. 1.

The following Monday, the district court inquired into

these concerns with defense counsel and Frazier, outside of the

presence of the government. After being assured by the district

court that nothing disclosed during the ex parte discussion

would be considered during sentencing, defense counsel explained

to the district court that, based on approximately “a dozen

visits” with his client, he believed Frazier to be “habitually

under the use [sic] of narcotics at the Chesapeake Detention

Facility.” S.J.A. 5. Defense counsel explained that during his

visits with Frazier he “noticed stains on his fingernails.” Id.

He noted that Frazier’s eyes were “glassy” and that Frazier

could not pay “any degree of attention.” Id. Defense counsel

also noted that Frazier “giggled and was giddy at inappropriate

moments.” Id. Counsel explained that he believed such supposed

narcotic use affected Frazier’s competency to proceed to trial

3
principally because Frazier “may or may not be able to assist”

in his own defense. S.J.A. 5-6.

Frazier discussed his mental health status with the court

and attributed his behavior to the high levels of stress and

anxiety he was experiencing. Frazier explained that he had not

seen his family in many years, including a two-year-old son whom

he had not seen at all. He explained that he had been

incarcerated for 16 years prior to being charged in the instant

case and the prospect of an additional 33 years of imprisonment

should he be convicted pushed his “stress level . . . off the

chart.” S.J.A. 9. Since his incarceration he had been placed

on a series of medications including Neurontin and Prozac, and

while he admitted that he “smoke[ed]” and that this was a

“problem at the Chesapeake Detention Center,” he also explained

that he had never had a positive urinalysis “for any substance.” 1

S.J.A. 8.

After hearing all such testimony, the district court

determined that there was no basis to find Frazier incompetent

1
It is unclear what type of substance Frazier was admitting
to smoking, and defense counsel did not inquire into the matter
any further. The district court explained that the stains on
Frazier’s fingers, which defense counsel noted in his colloquy,
were not indicative of incompetence because it was not clear
what substance Frazier was smoking. The district court opined
that they could have been tobacco stains, or they could be from
the use of “marijuana or something else.” S.J.A. 11.

4
to proceed to trial. The district court explained that, at its

request, the United States Marshal’s Office conferred with

authorities at the detention facility where Frazier was being

held, who confirmed that there was no indication that Frazier

had taken any illegal drugs. The district court also noted

that, as recently as the week before, Frazier had written

letters to the court in which he had no difficulty expressing

himself. The district court explained that the letters

contained no indication that Frazier was delusional or had any

difficulty making judgments. While the district court accepted

as true defense counsel’s observations of his client, the court

concluded that there was no reason to suspect that Frazier was

incompetent to proceed to trial. While Frazier did seem to

giggle at inappropriate moments, the district court explained

that such behavior “just seem[ed] to be his manner.” S.J.A. 11.

B.

After discussing Frazier’s competency outside the presence

of the government, the district court then turned to jury

selection in Frazier’s trial. Moments before that was to begin,

however, the parties notified the district court that they had

reached a plea agreement in principle and requested a brief

recess for the government to prepare a written agreement.

Frazier subsequently signed a plea agreement pursuant to

FED.R.CRIM.P. 11(c)(1)(C), under which the parties agreed to a

5
proposed 144 month sentence. Frazier would plead guilty to

Count Two of the Indictment, one of the substantive carjacking

counts, and in exchange the government agreed to dismiss the

remaining counts in the Indictment.

The district court proceeded through a lengthy colloquy

with Frazier regarding the terms of the plea agreement during

which it explained that if the plea was accepted, the sentence

imposed would be 144 months. The district court also conducted

further inquiry into Frazier’s competency before fully advising

Frazier of the rights he would have at trial including his right

to testify, the presumption of innocence, the government’s

burden, and his right to appeal should he be convicted. After

being so advised, Frazier confirmed that he still wished to

plead guilty and the court accepted his plea.

Upon Frazier’s request and consent by the government, the

district court then proceeded directly to sentencing. The

district court began by pronouncing Frazier’s criminal history

category, the stipulated offense level under the proposed plea

agreement, and the applicable guideline range of 135 to 168

months. The district court then allowed the government, defense

counsel, and Frazier the opportunity to speak. Defense counsel

stated that Frazier had asked “several intelligent questions”

and that defense counsel believed that Frazier was competent to

proceed with the plea hearing. J.A. 50-51.

6
 The district court then considered the proposed 144 month

sentence, noting that such a sentence was consistent with the

plea agreements offered to Frazier’s co-defendants. The

district court concluded that, having already tried one of

Frazier’s co-defendants and being thoroughly familiar with the

particular facts of the case, the proposed sentence was “in the

range of reasonableness,” and ultimately accepted the 144 month

sentence as the appropriate term of imprisonment. J.A. 75.

II.

Frazier now appeals his sentence, contending that (1) the

district court erred by not holding a competency hearing to

determine whether he could proceed to trial; and (2) that the

district court erred by sentencing him to the agreed upon 144

month term of imprisonment.

A.

We hold that the district court did not abuse its

discretion in failing to order a competency hearing. Title 18,

United States Code, Section 4241(a) requires a district court to

hold such 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). Even if no

7
motion is made by counsel, “[t]he district court must sua sponte

order a competency hearing if reasonable cause is demonstrated.”

United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).

Whether reasonable cause has been demonstrated, however, is left

to the discretion of the district court. Id. at 1289.

Frazier’s challenge on appeal is a “procedural competency

claim,” that is, he need not demonstrate that he was in fact

incompetent at the time of his guilty plea and sentencing, but

merely that the district court erred by not ordering a

competency hearing. United States v. Banks, 482 F.3d 733, 742

(4th Cir. 2007). “To prevail, the defendant must establish that

the trial court ignored facts raising a bona fide doubt

regarding the defendant's competency to stand trial.” Walton v.

Angelone, 321 F.3d 442, 459 (4th Cir. 2003) (internal quotation

marks omitted). 2

We review the district court’s determination that no

reasonable cause existed to order a competency hearing for abuse

of discretion, under which, “this Court may not substitute its

2
While Frazier waived his right to appeal in his plea
agreement, a criminal defendant may not “plead guilty unless he
does so ‘competently and intelligently.’” Godinez v. Moran, 509
U.S. 389, 396 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458,
468 (1938)).

8
judgment for that of the district court; rather, we must

determine whether the court's exercise of discretion,

considering the law and the facts, was arbitrary or capricious.”

Mason, 52 F.3d at 1289.

Appellant’s principal contention is that the district court

should have deferred to defense counsel’s impression that he was

under the influence of narcotics rendering him unable to assist

in his own defense. He further contends that the district

court’s observations regarding Frazier’s competency were

“qualitatively less meaningful” than those of defense counsel,

who had the “unique vantage point” of observing his behavior

numerous times over a six-month period. According to appellant,

the district court’s interaction with him was brief and involved

“little back-and-forth discussion.”

Besides defense counsel’s own statements of what he and his

investigators had observed, nothing before the district court

suggested that Frazier was incompetent to assist in his own

defense. The district court accepted as true defense counsel’s

impression, but determined that reasonable cause did not exist

to suspect that Frazier was incompetent to stand trial in the

face of other available evidence. See Mason, 52 F.3d at 1290

(“The trial court must look at the record as a whole and accept

as true all evidence of possible incompetence in determining

9
whether to order a competency hearing.”) (internal quotation

marks omitted).

“The district court should examine all of the record

evidence pertaining to the defendant's competence, including:

(1) any history of irrational behavior; (2) the defendant's

demeanor at and prior to sentencing; and (3) prior medical

opinions on competency.” United States v. Moussaoui, 591 F.3d

263, 291 (4th Cir. 2010) (citing United States v. General, 278

F.3d 389, 397 (4th Cir. 2002)) (internal quotation marks

omitted). Here, the district court properly considered that

Frazier had not tested positive for drug use at the detention

facility where he was being held, a fact which was bolstered by

Frazier’s own statement that although he “smoked,” he had never

tested positive during any urinalysis. Instead, Frazier

attributed any odd behavior that defense counsel may have

noticed to stress and anxiety, for which he was prescribed

medication.

The district court further noted that Frazier, in a series

of pro se letters to the court, had demonstrated that he was

clearly capable of expressing himself and was not delusional.

Frazier contends that such statements indicate that the district

court applied the wrong standard in determining his competency.

Under § 4241(a), a competency hearing is required if there is

reasonable cause to believe a defendant is “unable to understand

10
the nature and consequences of the proceedings against him or to

assist properly in his defense.” 18 U.S.C. § 4241(a) (emphasis

added). According to Frazier, the district court’s statements

indicate that it failed to consider whether he was competent to

assist in his own defense.

A complete and thorough review of the transcript, however,

reveals that this argument mischaracterizes the district court’s

analysis during the ex parte hearing. Furthermore, it puts the

cart before the horse in the § 4241 analysis in that it assumes

the district court had determined that Frazier was suffering

from a mental disease or defect. By its terms, § 4241

presupposes that before a district court analyzes the effect a

defendant’s mental disease or defect may have on defendant’s

competency to understand the nature and consequences of the

proceedings against or to assist properly in his defense, it has

already found that the defendant does indeed suffer from such a

mental disease or defect. Here, the district court’s

questioning and analysis indicates that it was simply

considering all available evidence to determine whether Frazier

suffered from any mental affliction to begin with. After

properly determining that Frazier was not suffering from a

mental disease or defect, there was no need to continue the

analysis. The fact that Frazier was taking Neurontin and Prozac

11
does not necessarily mean that he was suffering from a mental

disease or defect.

Frazier suggests that the district court should have

ordered a psychiatric evaluation under § 4241(b), but provides

no indication of how the district court abused in its discretion

in declining to do so. Setting aside the fact that subsection

(b) provides that “the court may order a psychiatric or

psychological examination,” nothing in the record suggests that

such an examination would have aided the district court in its

determination. 18 U.S.C. § 4241(b) (emphasis added). Frazier

contends that an evaluation was warranted because the source of

Frazier’s cognitive difficulty was not clear. Again,

Appellant’s argument assumes too much by concluding that Frazier

was indeed suffering from cognitive difficulty when, besides

defense counsel’s impression, nearly all the available evidence

was to the contrary. As the district court noted, Frazier may

have exhibited odd behavior, but that “just seem[ed] to be his

manner.” And when Frazier was allowed the opportunity to speak

about his counsel’s concerns, he attributed his odd behavior to

stress, depression, and the medication he had been prescribed.

Frazier did not show any sign of incompetency during the ex

parte hearing or the sentencing hearing. He was able to

understand the district court’s questions and concerns without

any difficulty and respond precisely and cogently. Further,

12
when the issue of Frazier’s competency arose during the plea

hearing, defense counsel abandoned his earlier concerns and

stated that he believed Frazier was “competent to proceed.”

J.A. 50-51.

The requirement of § 4241(a) that the district court grant

a competency hearing when reasonable cause exists cannot be

expanded to require such a hearing whenever defense counsel

raises concerns regarding his client’s competency or where a

defendant takes prescribed medication. Ultimately, it is up to

the district court in its discretion to determine whether

reasonable cause exists to require a competency hearing. We

therefore find that the district court did not abuse its

discretion in failing to order a hearing to determine Frazier’s

competency to stand trial.

B.

Appellant next contends the district court erred by

deferring to the plea agreement in determining Frazier’s

sentence of 144 months imprisonment. The plea agreement in this

case was proffered pursuant to Federal Rule of Criminal

Procedure 11(c)(1)(C). Under Rule 11(c)(1)(C), the parties may

stipulate that “a specific sentence or sentencing range is the

appropriate disposition of the case.” FED.R.CRIM.P. 11(c)(1)(C).

“[S]uch a recommendation or request binds the court once the

court accepts the plea agreement.” Id. In this case, the

13
parties agreed in the plea agreement that 144 months

imprisonment was the appropriate sentence.

Appellant contends that the district court erred by not

first independently determining the appropriate sentence and

then, considering that sentence, deciding whether it could

accept defendant’s plea. Title 18, United States Code, Section

3553(a) requires district courts to “impose a sentence

sufficient, but not greater than necessary, to comply with the”

four congressionally mandated goals of sentencing. 18 U.S.C. §

3553(a)(2). In determining the appropriate sentence for a

defendant, § 3553(a) requires the court to consider these goals

as well as the other factors listed in subsection (a).

Appellant contends that the district court erred because it

failed to consider these factors in determining Frazier’s

sentence. According to Appellant, the district court applied

the wrong standard and accepted the plea because the recommended

144 month sentence was “in the range of reasonableness.” J.A.

75; see United States v. Tucker, 473 F.3d 556, 561 (4th Cir.

2007) (holding that a district court’s mission in sentencing is

not to impose a ‘reasonable’ sentence but rather, one

sufficient, but not greater than necessary, to comply with the

purposes of § 3553(a)). By not first determining the

appropriate sentence, Appellant argues, the district court

“abdicat[ed] its constitutional duty to exercise its own

14
independent judgment in sentencing Mr. Frazier.” Appellant’s

Br. 38.

The government contends that this court need not reach this

issue as Frazier waived his right to appeal his sentence in his

plea agreement and that this portion of his appeal must be

dismissed. “Whether a defendant has effectively waived his

statutory right to appeal his sentence is a question of law

subject to de novo review.” General, 278 F.3d at 399. We “will

enforce the waiver if it is valid and the issue appealed is

within the scope of the waiver.” United States v. Davis, 689

F.3d 349, 355 (4th Cir. 2012). Frazier’s plea agreement

contains the following provision:

The Defendant and this Office knowingly waive all
right . . . to appeal whatever sentence imposed . . .
except as follows: (i) the Defendant reserves the
right to appeal any sentence to the extent that it
exceeds 144 months imprisonment; and (ii) this Office
reserves the right to appeal any term of imprisonment
to the extent that it is below 144 months’
imprisonment.

J.A. 85.

“The validity of an appeal waiver depends on whether the

defendant knowingly and intelligently agreed to waive the right

to appeal.” United States v. Blick, 408 F.3d 162, 169 (4th Cir.

2005). Whether an appeal waiver was knowing and intelligent is

determined based on the totality of the circumstances and “must

depend, in each case, upon the particular facts and

15
circumstances surrounding that case, including the background,

experience, and conduct of the accused.” Id. (quoting United

States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992)).

In this case, the record fully establishes that Frazier

knowingly and intelligently waived his right to appeal his

sentence if it did not exceed 144 months. During the plea

colloquy the district court unambiguously informed Frazier of

the appeal waiver in his plea agreement. The district court

explained that should he be convicted at trial, he would have

the right to appeal his conviction. By signing the plea

agreement, the district court explained, he would be waiving his

right to appeal the conviction. The district court also

explained that under the plea agreement Frazier would waive his

right to appeal any sentence not greater than 12 years.

Frazier’s unequivocal response was that he understood and that

he wished to move forward with his guilty plea. Moreover,

Frazier discussed the plea agreement with defense counsel and

confirmed that he was satisfied that he was “doing the right

thing” by waiving his right to appeal any sentence in excess of

12 years. J.A. 55.

Appellant contends that the appeal waiver is not valid

because “the district court never validly accepted” the plea

agreement. Appellant’s Br. 47. Appellant contends that because

the district court failed to exercise its sentencing authority

16
to independently determine the appropriate sentence, the plea

agreement was never validly accepted, and because the plea was

never validly accepted, the plea waiver has no vitality.

Whether the district court was required to consider the §

3553(a) factors to determine the appropriate sentence before

accepting Frazier’s plea has no impact on the valid appeal

waiver in the plea agreement. The acceptance of a plea and

sentencing are two separate and distinct phases of criminal

procedure. Acceptance of a plea is governed by Federal Rule of

Criminal Procedure 11(b) while sentencing is governed by Rule

32. Not only is there no binding authority for Appellant’s

proposition, Federal Rule of Criminal Procedure 11(d) recognizes

that acceptance of a plea is distinct from sentencing, as a plea

may be withdrawn “after the court accepts the plea, but before

it imposes sentence.” FED.R.CRIM.P.11(d)(2). Because Frazier

knowingly and intelligently waived his right to appeal any

sentence in excess of 12 years pursuant to his plea agreement,

we dismiss his sentencing challenge.

III.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

17
18
TRAXLER, Chief Judge, concurring in the result:

I agree, for the reasons expressed by the majority, that

the district court did not abuse its discretion in failing to

order a competency hearing. However, because my analysis of the

other issue Frazier raises differs from that of the majority, I

write separately.

When a defendant pleads guilty to a charged offense,

Federal Rule of Criminal Procedure 11(c)(1)(C) allows the

parties to “agree that a specific sentence or sentencing range

is the appropriate disposition of the case.” When the parties

reach this type of agreement (“a C-plea”), “the court may accept

the agreement, reject it, or defer” its decision until after

reviewing the presentence report. Fed. R. Crim. P. 11(c)(3)(A).

Yet although the court is free to accept or reject the plea

agreement, the parties’ agreed-upon sentence “binds the court

once the court accepts the plea agreement.” Fed. R. Crim. P.

11(c)(1)(C). Frazier contends that the district court erred in

accepting his C-plea without finding that the agreed-upon

sentence was sufficient but not greater than necessary to serve

the sentencing goals identified in 18 U.S.C. § 3553.

The government argues that we need not review the merits of

Frazier’s argument because Frazier’s plea agreement contains a

waiver of his right to appeal a sentence of 144 months, the

sentence Frazier received. I disagree. If Frazier is correct

19
that the district court committed reversible error in accepting

the plea agreement, then the agreement is invalid and neither

side is bound by the terms therein, including the appellate

waiver. See United States v. Portillo-Cano, 192 F.3d 1246, 1250

(9th Cir. 1999). I therefore turn to the merits of Frazier’s

argument.

Because Frazier asserts it for the first time on appeal,

our review is for plain error only. See United States v. Olano,

507 U.S. 725, 732 (1993). To succeed on plain-error review, a

defendant must show: (1) there was error, (2) the error was

plain, and (3) the error affected his substantial rights. See

id. Even if a defendant can satisfy these requirements,

correction of the error remains in the court’s discretion, which

it “should not exercise . . . unless the error seriously affects

the fairness, integrity, or public reputation of judicial

proceedings.” Id. (internal quotation marks and alteration

omitted).

Sentencing Guidelines § 6B1.2(c) governs whether a district

court should approve a plea agreement that includes a specific

sentence. The policy statement states that

the court may accept the agreement if the court is
satisfied either that:

(1) the agreed sentence is within the applicable
guideline range; or

20
 (2) (A) the agreed sentence is outside the applicable
guideline range for justifiable reasons; and (B) those
reasons are set forth with specificity in the
statement of reasons form.

U.S.S.G. § 6B1.2(c) p.s.; see Freeman v. United States, 131 S.

Ct. 2685, 2692 (2011) (plurality opinion); id. at 2696

(Sotomayor, J., concurring in the judgment).

Here, the district court explicitly noted that the parties

had stipulated that the applicable guideline range was 135 to

168 months, and Frazier does not argue otherwise now. In

arguing that the district court’s finding that the agreed-upon

sentence was reasonable did not provide a sufficient basis for

the district court to adopt the plea agreement, Frazier does not

make reference to U.S.S.G. § 6B1.2(c). Rather, he argues that,

in order to validly adopt the agreement, the district court

needed to explicitly find that the agreed-upon sentence was

“‘sufficient, but not greater than necessary’” to accomplish the

goals of sentencing. Kimbrough v. United States, 552 U.S. 85,

101 (2007) (quoting 18 U.S.C. § 3553(a)). Essentially, his

argument would allow the district court to accept a C-plea only

if the agreed-upon sentence were exactly the sentence that the

district court would have imposed if left to its own devices. I

am not aware of any case that has limited a district court’s

discretion regarding whether to accept a C-plea in this way, and

such a limitation would seem to be at odds with U.S.S.G. §

21
6B1.2(c). Thus, in my view, the district court did not err –

and certainly did not plainly err – in approving the agreement.

22