UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4155
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC SCOTT PENNINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
Chief District Judge. (2:13-cr-00034-JPB-JSK-5)
Submitted: October 29, 2014 Decided: November 14, 2014
Before DUNCAN and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark K. McCulloch, BROWNSTONE, P.A., Winter Park, Florida, for
Appellant. William J. Ihlenfeld, II, United States Attorney,
Stephen D. Warner, Assistant United States Attorney, Elkins,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Scott Pennington pled guilty to possession of
pseudoephedrine to be used in the manufacture of
methamphetamine, in violation of 21 U.S.C. § 841(c)(2) (2012).
Pennington raises several objections to his conviction and
sentence. We affirm.
Pennington first argues that the magistrate judge
lacked statutory authority to accept his guilty plea, suggesting
that we depart from our holding in United States v. Benton, 523
F.3d 424, 429, 433 (4th Cir. 2008). However, any such change
would have to be made by the full court sitting en banc. United
States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005).
Next, Pennington argues that the magistrate judge
should have ordered a competency hearing sua sponte before
accepting the guilty plea due to Pennington’s mental
disabilities. A district court is required to order a
competency hearing sua sponte “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) (2012). We have
recognized, “[h]owever, [that] there are no fixed or immutable
signs which invariably indicate the need for further inquiry to
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determine fitness to proceed.” United States v. Moussaoui, 591
F.3d 263, 291 (4th Cir. 2010) (internal quotation marks
omitted). Our review of the plea colloquy leaves us without
doubt that Pennington was capable of understanding the nature
and consequences of the proceedings and assisting properly in
his own defense. Accordingly, we conclude that the magistrate
judge did not abuse his discretion in declining to order a
competency hearing sua sponte.
Pennington also argues for the first time on appeal
that the Government breached the plea agreement by failing to
request a sentence reduction for acceptance of responsibility.
See Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013)
(discussing plain error standard of review). The Government
breaches a plea agreement when a promise it made to induce the
plea goes unfulfilled. See Santobello v. New York, 404 U.S.
257, 262 (1971). Because the plea agreement conditioned the
Government’s duty to request such a reduction on the probation
officer’s recommendation and on Pennington’s compliance with the
conditions of his release on bond, that duty did not arise here.
Therefore, we conclude that the Government did not breach the
plea agreement.
Finally, Pennington challenges the district court’s
imposition of a three-level sentencing enhancement for creating
a substantial risk of harm to human life. U.S. Sentencing
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Guidelines Manual (“USSG”) § 2D1.1(b)(13)(C)(ii) (2013).
Although he contends that the court violated Fed. R. Crim. P.
32(i)(3)(B) by failing to resolve the dispute surrounding the
enhancement, our review of the record convinces us that the
enhancement was uncontested at the time of the sentencing
hearing and that the district court was not obligated to mention
it when summarily adopting the presentence report. See id.
32(i)(3)(A). Moreover, contrary to Pennington’s assertion on
appeal, the district court did not plainly err in imposing the
substantial risk enhancement in light of Pennington’s relevant
conduct. * See USSG § 1B1.3(a)(1) (defining relevant conduct);
see also Henderson, 133 S. Ct. at 1126-27 (stating standard of
review); Gall v. United States, 552 U.S. 38, 51 (2007)
(discussing appellate review of sentences).
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 this court and argument would not aid the decisional
process.
AFFIRMED
*
To the extent Pennington suggests that counsel performed
deficiently in failing to contest the substantial harm
enhancement, we decline to review this issue on direct appeal.
See Benton, 523 F.3d at 435 (providing standard).
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