(dissenting):
From the premise that the defendant Masthers was a man of limited intelligence and education the majority extracts the conclusion that he may have been incompetent to enter a plea of guilty, so that a hearing is necessary to determine his competency. I cannot agree. In my opinion there is nothing in the record to support the inference that Masthers was incompetent or that he did not know exactly what he was doing when he entered his plea.
Indicted with a co-defendant for armed robbery and released on personal recognizance June 2, 1972 the defendant failed to appear for arraignment on June 16, 1972. He was a fugitive from that date until October 3, 1973 when he was arrested on a bench warrant. Meanwhile the co-defendant, who had implicated Masthers, pleaded guilty and was sentenced.
*731On November 26, 1973 Masthers entered the plea of guilty which is in question here. He was committed pursuant to 18 U.S.C. § 4253, the Narcotic Addict Rehabilitation Act, to determine whether he was an addict and likely to be rehabilitated under the NARA program. The NARA staff reported that his addiction was questionable and that he was not likely to be rehabilitated through the NARA program. The report noted that he was “not functioning at an educational, mental or social level of the average person referred to this program”, his I.Q. score being 57 “which would place him in the ‘mentally defective’ category”. An achievement test indicated he was “operating slightly above the second grade level of academic achievement”. Having received this report, together with a presentence report from the probation officer, the District Court on March 28, 1974 sentenced Masthers to be imprisoned for not less than two nor more than six years.
On April 12, 1974 Masthers, through his counsel, filed a “Motion to Vacate Plea of Guilty under 28 United States Code 2255”; and on May 6, 1974 he filed a Motion for Withdrawal of Plea of Guilty under 32(d) Fed.R.Crim.P. The ground of both motions was that subsequent to the plea of guilty counsel became aware of evidence in the reports on the defendant that he had a subnormal I.Q. and was incompetent to stand trial or plead guilty. On May 6,1974 counsel also filed a Motion for Reconsideration and Reduction of the Sentence imposed upon Masthers. The District Court considered the motions together and by memorandum order denied them without hearing. I think the court was right.
This is not a case in which an innocent man because of ignorance, stupidity or overreaching has pleaded guilty to a crime he did not commit. The record discloses that the complaining witness, who was held up at gunpoint, knew Masthers and was therefore able to identify him without difficulty. Masthers freely confessed his guilt to the police, the probation officer and the NARA staff. In his motion to vacate the plea his counsel asserted that Masthers “continually stated that in fact he had committed the offense in question. Additionally, the government witnesses were interviewed prior to the plea of guilty by counsel, and their testimony was definite that the defendant did the act complained of and the defendant stated that the confession was not coerced.” When he entered his plea of guilty his counsel told the court that he had explained the matter to Masthers who was “doing this of his own free will”. In response to questions from the court Masthers acknowledged that he understood his rights, understood the charge against him, which the court explained, and that the government’s oral statement of the facts of the case was accurate. Although the majority thinks it significant that Masthers answered only “Yes Ma’am” to the various questions from the bench I fail to see what more needed to be said; there was no occasion for a speech. Finally, at the time of sentencing Masthers told the court:
I know I have did some bad things, but I haven’t did nothing like this before in my life, but like Mr. Lowy [his counsel] said I don’t have much education, and everybody knows that.
The majority suggests that in this case “matters of reality . . . should be controlling”. I agree. I think the realities in this case are that the defendant understood that he was charged with the armed robbery of the complaining witness, knew he was guilty, and understood that his plea of guilty would subject him to punishment. Any other conclusion from the facts would, I submit, be a masterpiece of naivete.
Since the defendant understood what he was doing the question comes to this: May a guilty man who freely and with the advice of counsel acknowledges his guilt by a plea of guilty avoid the consequences of his plea upon the ground that he is an uneducated dullard? I think the answer must be no.
Until today the law of this circuit has been that evidence of a low intelligence quotient rating is not evidence of a mental defect and certainly does not demonstrate *732incompetency; and we have never accepted the theory of diminished responsibility. McDonald v. United States, 114 U.S.App. D.C. 120, 123, 312 F.2d 847, 850 (1962) en banc; Stewart v. United States, 107 U.S. App.D.C. 159, 165, 275 F.2d 617, 623 (1960) en banc, rev’d on other grounds, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961). The majority abandons these sound doctrines; for if the defendant’s low intelligence and meager education make him incompetent to plead guilty then perforce he is incompetent to stand trial, and if he should be tried he could successfully raise the defense of incompetence. Thus the majority creates for this circuit a new defense against charges of crime — a lack of responsibility not amounting to insanity. The decision licenses every illiterate moron to violate the law with impunity. I cannot accept such a doctrine. Accordingly I dissent.
On Sua Sponte Motion for Rehearing En Banc
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVEN-THAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.ORDER
PER CURIAM.The motion for rehearing en banc initiated by a member of the Court in regular active service is denied, a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure).
Statement of Circuit Judge ROBB of reasons for voting for rehearing en banc. Circuit Judges TAMM, MacKINNON and WILKEY concur in this statement.Statement of Circuit Judge ROBB of Reasons for Voting for Rehearing En Banc
I have voted in favor of the suggestion by one of my colleagues that this case be reheard en banc. In my judgment the majority opinion is an attempt to introduce the defense of diminished responsibility into the criminal law of this circuit. We rejected that concept in Stewart v. United States, 107 U.S.App.D.C. 159, 165, 275 F.2d 617, 623 (1960), en banc, (opinion by Burger, J.) rev’d on other grounds, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961). If we are now to change the law that action should be taken by the full court, not by way of a panel opinion and its implications.