UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4064
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DIONE FAUNTLEROY, JR., a/k/a Sticks, a/k/a Dummy,
Defendant – Appellant.
No. 12-4172
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KIMMER BAKER, a/k/a Big Boy,
Defendant - Appellant.
No. 12-4177
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DIONE FAUNTLEROY, SR., a/k/a Big Man,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:10-cr-00336-BEL-1; 1:10-cr-00336-BEL-12; 1:10-cr-00336-BEL-
13)
Submitted: January 18, 2013 Decided: January 31, 2013
Before MOTZ, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew R. Szekely, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland;
Anthony D. Martin, ANTHONY D. MARTIN, P.C., Greenbelt, Maryland;
Arthur S. Cheslock, Baltimore, Maryland, for Appellants. Rod J.
Rosenstein, United States Attorney, Christopher J. Romano,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In December 2010, a federal grand jury sitting in the
District of Maryland returned a twenty-four-count indictment
against twenty-two named individuals. As relevant to these
consolidated appeals, Dione Fauntleroy, Jr., Dione Fauntleroy,
Sr., and Kimmer Baker were charged with conspiracy to distribute
and to possess with intent to distribute fifty grams or more of
crack cocaine, five kilograms or more of cocaine, and an
unspecified quantity of heroin within 1000 feet of a public
housing facility, in violation of 21 U.S.C. §§ 846, 860 (2006).
All three men eventually pleaded guilty to this offense. Both
Fauntleroys entered into written plea agreements with the
Government, which included stipulated sentences. See Fed. R.
Crim. P. 11(c)(1)(C). Baker entered his guilty plea without the
benefit of a written plea agreement.
The district court ultimately imposed the stipulated
sentences negotiated between the Fauntleroys and the Government.
In sentencing Baker, the court varied downward from his advisory
Guidelines range to impose a 160-month term of imprisonment.
Each Defendant timely noted an appeal from the entry of
judgment. Their appeals were consolidated in this court.
On appeal, Fauntleroy Jr. asserts that the district
court “committed reversible error by not seeking to explore the
issue of whether [he] was so intoxicated during his guilty plea
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that he could not freely, knowingly, and voluntarily waive his
rights.” (Appellants’ Br. at 15). Fauntleroy Sr. argues that
the district court abused its discretion by failing to sua
sponte conduct a competency hearing after being informed of his
mental retardation and addiction issues and learning that he did
not fully understand his plea agreement. Baker appeals only his
sentence, arguing that the district court erred in computing his
criminal history score and violated due process in determining
the drug quantity attributable to him.
As discussed in more detail below, we find no merit in
any of these arguments. Accordingly, we affirm the three
criminal judgments.
I.
Turning first to Appeal No. 12-4064, Fauntleroy Jr.’s
lone appellate contention is that the district court was
obligated to retrospectively evaluate his competency to plead
guilty after learning, via a statement in his presentence report
(“PSR”), about his potential intoxication on the day of his
guilty plea. We disagree.
Because Fauntleroy Jr. did not move in the district
court to withdraw his guilty plea or otherwise raise this issue
in the district court, it is reviewed for plain error. United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002); see
4
United States v. Hopkins, 380 F. App’x 357, 358-59 (4th Cir.
2010). To establish plain error on appeal, Fauntleroy Jr. must
show: (1) there was error; (2) the error was plain; and (3) the
error affected his substantial rights. United States v. Olano,
507 U.S. 725, 732 (1993).
As an initial matter, we note that the PSR does not
unequivocally establish that Fauntleroy Jr. informed the
probation officer that he was actually inebriated or under the
influence of narcotics when he entered his guilty plea. Rather,
the report reflects that Fauntleroy Jr. told the probation
officer that he had used Oxycontin and ingested alcohol the day
of his Fed. R. Crim. P. 11 hearing. While one could infer from
this that Fauntleroy Jr. took Oxycontin and drank alcohol prior
to the plea hearing, and thus surmise that he was under the
influence at the hearing, the record does not command such a
conclusion. In light of this ambiguity, we find it particularly
significant that appellate counsel does not actually assert that
Fauntleroy Jr. was inebriated or under the influence of any
intoxicating substance when he entered his guilty plea.
Assuming, though, that the district court should have
construed the PSR to mean that Fauntleroy Jr. used these
intoxicating substances prior to entering his guilty plea, we
conclude that any error stemming from the court’s failure to
pursue this issue was not plain. Fauntleroy Jr.’s post-hoc
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contention is flatly contradicted by his testimony at the Rule
11 hearing. While under oath, Fauntleroy Jr. testified that he
had not taken any drug or drink that would affect his thinking
within the last twenty-four hours. The court also asked whether
Fauntleroy Jr. was “completely lucid of mind and capable of
making a fully informed decision,” to which he responded
affirmatively. (J.A. 141). 1
Absent compelling evidence to the contrary, “the truth
of sworn statements made during a Rule 11 colloquy is
conclusively established.” United States v. Lemaster, 403 F.3d
216, 221-22 (4th Cir. 2005); see Blackledge v. Allison, 431 U.S.
63, 74 (1977) (holding that a defendant’s declarations at the
Rule 11 hearing “carry a strong presumption of verity”); United
States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991) (concluding
that a defendant’s statements at a Rule 11 hearing that he was
neither coerced nor threatened was “strong evidence of the
voluntariness of his plea”). The information contained in the
PSR simply was not so compelling as to obligate the district
court to revisit the issue of Fauntleroy Jr.’s competency. Cf.
United States v. Sinclair, 31 F. App’x 232 (4th Cir. 2002)
(holding that the district court did not err in “failing to
1
Citations to the “J.A.” refer to the four-volume joint
appendix the parties filed with this court.
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revisit the issue of [defendant’s] competency at sentencing,”
given that “there were no abnormalities in [his] Fed. R. Crim.
P. 11 plea colloquy” and defendant’s medical evidence reflected
that he was indeed competent to plead guilty). On this record,
we hold that Fauntleroy Jr. cannot establish that there was any
error that was plain.
II.
We next consider Fauntleroy Sr.’s claim, in Appeal No.
12-4177, that the district court erred in failing to sua sponte
conduct a competency hearing after learning that he (a) did not
fully understand the nature of his plea agreement; (b)
previously attempted suicide; and (c) was mildly mentally
retarded and had a long-term history of drug abuse. The
conviction of a defendant when he is legally incompetent
violates due process, and Congress has acted to protect this
right by authorizing and requiring trial courts to hold
competency hearings. Beck v. Angelone, 261 F.3d 377, 387 (4th
Cir. 2001); United States v. Mason, 52 F.3d 1286, 1289 (4th Cir.
1995). When neither party moves for a competency hearing, the
district court:
[S]hall order such a hearing on its own motion[ ] 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
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nature and consequences of the proceedings against him
or to assist properly in his defense.
18 U.S.C. § 4241(a) (2006). The hearing may be ordered any time
after prosecution commences or before sentencing. Id.
“[A] petitioner may make a procedural competency claim
by alleging that the trial court failed to hold a competency
hearing after the petitioner’s mental competency was put in
issue.” Beck, 261 F.3d at 387. Such a claim will succeed if
the petitioner establishes that the trial court failed to
consider facts or information that created a “bona fide doubt”
as to the petitioner’s competency. Id. (internal quotation
marks omitted). “In determining 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.” Mason, 52 F.3d
at 1290 (citing Drope v. Missouri, 420 U.S. 162, 180 (1975)).
To establish a procedural incompetency claim, a
defendant “need not demonstrate on appeal that he was in fact
incompetent, but merely that the district court should have
ordered a hearing to determine the ultimate fact of competency.”
United States v. Banks, 482 F.3d 733, 742 (4th Cir. 2007).
Because the district court “is in a superior position to adjudge
the presence of indicia of incompetency constituting reasonable
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cause to initiate a hearing,” we review the district court’s
determination that no reasonable cause existed to order a
competency hearing for an abuse of discretion. Id. at 742-43.
However, “this [c]ourt may not substitute its judgment for that
of the district court; rather, we must determine whether the
[district] court’s exercise of discretion, considering the law
and the facts, was arbitrary or capricious.” Id. (citing Mason,
52 F.3d at 1289).
Fauntleroy Sr. argues that “[t]he information learned
at the sentencing hearing coupled with the defendant’s letter
addressed to the court raised the need for the Court to
determine whether Fauntleroy Sr. was legally competent at the
time of his guilty plea.” (Appellants’ Br. at 18). Counsel
contends that Fauntleroy Sr.’s “past mental and psychological
problems” cast doubt on “his competency at the time of his
guilty plea.” (Id. at 22).
We are not persuaded by this argument. First, nothing
about Fauntleroy Sr.’s post-plea, pre-sentencing letter to the
district court could reasonably be viewed as generating concerns
about his competency. Counsel’s statements at sentencing were
likewise insufficient to obligate the court to re-examine
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Fauntleroy Sr.’s competency. 2 Particularly, counsel averred that
Fauntleroy Sr. had “some mental retardation,” but did not
elaborate on that point or proffer any corroborating evidence.
(J.A. 221). And although counsel noted that Fauntleroy Sr. had
accidentally overdosed on drugs in 1990, resulting in an
extended hospital stay, he did not argue that Fauntleroy Sr. was
mentally ill or being treated for any mental illness. At no
time did counsel assert that any of these factors rendered
Fauntleroy Sr. “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). We conclude that these facts
were insufficient to raise a “bona fide doubt” regarding
Fauntleroy Sr.’s competency, Beck, 261 F.3d at 387 (internal
quotation marks omitted), and thus hold that the district court
did not abuse its discretion by failing to sua sponte conduct a
competency hearing.
2
At the Rule 11 hearing, the district court questioned
Fauntleroy Sr. regarding whether he was “completely lucid of
mind,” and he responded affirmatively. (J.A. 141). At the
conclusion of the hearing, the court specifically found that
Fauntleroy Sr. was “clear of mind and fully capable of making an
informed decision.” (J.A. 157).
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III.
Finally, we turn to Baker’s claim, in Appeal No. 12-
4172, that the district court erred in computing his criminal
history score and in calculating the drug quantity attributable
to him for sentencing purposes. We review Baker’s sentence for
reasonableness, applying an abuse of discretion standard. Gall
v. United States, 552 U.S. 38, 51 (2007); see also United States
v. Horton, 693 F.3d 463, 472 (4th Cir. 2012). In reviewing the
district court’s application of the Sentencing Guidelines, this
court reviews findings of fact for clear error and questions of
law de novo. Horton, 693 F.3d at 474.
As the Government aptly points out in its response
brief, the computation of Baker’s criminal history score was
rendered irrelevant by the district court’s application of the
career offender enhancement, which Baker does not challenge on
appeal. Pursuant to this guideline, the defendant’s criminal
history category is automatically set at VI. See U.S.
Sentencing Guidelines Manual § 4B1.1(b)(B) (2011). Accordingly,
any error in calculating Baker’s criminal history score does not
affect his sentence, given that his criminal history category
was ultimately determined by the career offender guideline. See
United States v. Chapman, 57 F. App’x 551, 552 (4th Cir. 2003)
(holding dispute as to calculation of criminal history score
mooted by career offender enhancement).
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Baker’s challenge to the calculation of the drug
quantity attributed to him also misses the mark. Although Baker
remains steadfast in his contention that the attributable drug
quantity should reflect only his actual involvement in the
conspiracy’s distribution efforts, this argument simply
misapprehends the law. It is well settled that, when
determining the drug quantity to attribute to a defendant
convicted of a drug conspiracy, “the district court may
attribute to the defendant the total amount of drugs involved in
the conspiracy, provided the drug quantities were reasonably
foreseeable to the defendant and are within the scope of the
conspiratorial agreement.” United States v. Randall, 171 F.3d
195, 210 (4th Cir. 1999). Accordingly, we reject Baker’s
contention that “he should be held responsible for his actions
alone and only the amount of drugs he transferred or received.”
(Appellants’ Br. at 26).
IV.
For the foregoing reasons, we affirm the district
court’s judgments in these consolidated appeals. 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
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