UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4318
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RASHADI ANDRE WEARING,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
Senior District Judge. (3:04-cr-00092-nkm-bwc-8)
Submitted: September 2, 2011 Decided: September 19, 2011
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Willis J. Spaulding, Charlottesville, Virginia, for Appellant.
Timothy J. Heaphy, United States Attorney, Nancy S. Healey,
Assistant United States Attorney, Charlottesville, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rashadi Andre Wearing appeals the district court’s
amended judgment entered after this court remanded the action
for the purpose of having the district court make a
retrospective determination regarding Wearing’s competency when
he pled guilty. Wearing claims the district court erred finding
that he failed to show he was not competent when he pled guilty.
In addition, he contends that at sentencing, the court did not
believe it had the authority to depart downward and that his
counsel was ineffective. We affirm.
Despite Wearing’s claim that de novo review is proper,
this court reviews a district court’s competency determination
for clear error and for abuse of discretion. United States v.
Moussaoui, 591 F.3d 263, 291 (4th Cir. 2010); United States v.
Robinson, 404 F.3d 850, 856 (4th Cir. 2005); United States v.
Cox, 964 F.2d 1431, 1433 (4th Cir. 1992). A district court must
determine if “[the 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 factual
understanding of the proceedings against him.” Dusky v. United
States, 362 U.S. 402 (1960) (internal quotation marks omitted).
The defendant shall be considered incompetent if the district
court finds, “by a preponderance of the evidence that the
2
defendant is presently 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(d) (2006).
“Not every manifestation of mental 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). Similarly, “neither low intelligence, mental
deficiency, nor bizarre, volatile, and irrational behavior can
be equated with mental incompetence to stand trial.” Id. In
this instance, Wearing had the burden of establishing his
incompetence. United States v. Robinson, 404 F.3d at 856.
There is no merit to Wearing’s claim that under the
circumstances, the Government should have had the burden of
establishing that he was competent.
We conclude that the record clearly supports the
finding that Wearing was not under the influence of prescribed
medications for bipolar disorder during the time period when he
*
We conclude that Wearing’s claim that the district court
should have been governed by our holding in United States v.
Damon, 191 F.3d 561 (4th Cir. 1999) is without merit as that
case is clearly distinguishable.
3
pled guilty. At the Rule 11 hearing, Wearing, under oath, told
the court he was not taking any prescribed medications and that
he was not under the care of a physician or a psychiatrist.
Furthermore, Wearing’s medical records support the finding that
Wearing had not taken his prescribed medications prior to or on
the day he pled guilty. We also conclude that there was no
error in the district court’s finding that Wearing failed to
show he was not competent when he pled guilty.
We are without jurisdiction to review the district
court’s finding that the evidence did not support a downward
departure. Our review of the record shows that the court
understood its authority to depart and chose not to. United
States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990).
As a general rule, claims of ineffective assistance of
counsel should be raised in a 28 U.S.C.A. § 2255 (West Supp.
2011) motion rather than on direct appeal unless the appellate
record conclusively demonstrates ineffective assistance. United
States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). The record
currently before the court does not conclusively establish that
Wearing’s trial counsel was ineffective at sentencing.
Accordingly, we affirm the amended judgment of
conviction. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
4
before the court and argument would not aid the decisional
process.
AFFIRMED
5