United States v. Dione Fauntleroy, Jr.

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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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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