United States v. Jeffrey McCormick ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4951
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY LAWSON MCCORMICK,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, Senior
District Judge. (6:13-cr-00011-NKM-RSB-1)
Submitted: March 24, 2015 Decided: March 31, 2015
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Helen Eckert Phillips, ALLEN, KOPET & ASSOCIATES, PLLC, Bristol,
Virginia, for Appellant. Jean Barrett Hudson, Assistant United
States Attorney, Charlottesville, Virginia; Ashley Brooke Neese,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Lawson McCormick pled guilty to manufacturing 50
grams or more of a mixture and substance containing a detectable
amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
(2012). The district court sentenced McCormick to 166 months’
imprisonment and also adjudged him permanently ineligible to
receive federal benefits, pursuant to 21 U.S.C. § 862(a)(1)(C)
(2012). Counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating that there were no meritorious
grounds for appeal but questioning whether McCormick was
competent to plead guilty. McCormick filed a pro se
supplemental brief, raising the same issue as counsel and other
challenges to his conviction and sentence.
On review of the record, we directed the parties to submit
supplemental briefs addressing whether the district court
plainly erred by adjudging McCormick permanently ineligible to
receive federal benefits. Conceding that the court plainly
erred, the Government has moved to vacate McCormick’s sentence
and remand for resentencing. McCormick has consented to the
remand. For the following reasons, we grant the Government’s
motion, affirm the conviction, affirm the sentence in part,
vacate the portion of the sentence adjudging McCormick
permanently ineligible to receive federal benefits, and remand
for further proceedings.
2
Turning first to McCormick’s conviction, both counsel and
McCormick question whether McCormick was competent to plead
guilty. 1 McCormick further argues in his pro se supplemental
brief that the district court should have conducted a competency
hearing before accepting his plea. Because McCormick did not
move in the district court to withdraw his guilty plea, we
review the adequacy of the Federal Rule of Criminal Procedure 11
hearing, including the sufficiency of the district court’s
inquiry into McCormick’s competence, for plain error. United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002); see
United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009)
(explaining plain error review in guilty plea context).
It is axiomatic that, “[b]efore a court may accept a guilty
plea, it must ensure that the defendant is competent to enter
the plea.” Moussaoui, 591 F.3d at 291 (internal quotation marks
omitted). “When a response in a plea colloquy raises questions
about the defendant’s state of mind, the court must broaden its
inquiry to satisfy itself that the plea is being made knowingly
1
In his pro se supplemental brief, McCormick also
challenges the validity of the search warrant and the legality
of his post-arrest statement. We conclude that McCormick waived
these challenges when he pled guilty. See United States v.
Moussaoui, 591 F.3d 263, 279 (4th Cir. 2010) (“[T]he defendant
who has pled guilty has no non-jurisdictional ground upon which
to attack that judgment except the inadequacy of the plea.”
(internal quotation marks omitted)).
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and voluntarily.” United States v. Nicholson, 676 F.3d 376, 382
(4th Cir. 2012) (internal quotation marks omitted). For
McCormick to prevail on his claim, he “must establish that the
trial court ignored facts raising a bona fide doubt regarding
his competency,” rendering the court’s decision not to order a
competency hearing an abuse of discretion. Moussaoui, 591 F.3d
at 291 (internal quotation marks and brackets omitted).
We conclude that the district court did not abuse its
discretion by accepting McCormick’s plea without ordering a
competency hearing. When McCormick indicated that he was taking
several medications, the court fulfilled its obligation by
ensuring that those medications were not affecting McCormick’s
ability to think clearly or make decisions. See Nicholson, 676
F.3d at 382 (“With a medicated defendant, a court should
ascertain the effect, if any, of the medication on his ability
to enter a knowing and voluntary plea.”). Moreover, when the
court discovered that McCormick had been treated for alcohol and
narcotic addiction, it confirmed that McCormick was not
currently under the influence of drugs or alcohol. While
McCormick did state that he was feeling “a little slouchy,” that
description related to his physical condition and not his
ability to understand the proceedings. Finally, although
McCormick claims on appeal that his liver conditions caused him
to be unable think clearly and that he was depressed and under
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the influence of heroin at the time of his plea, he neither
advised the court of these impairments at the time of the Rule
11 hearing nor moved to withdraw his plea on the ground that he
was incompetent to enter it (or on any ground at all).
Next, we review McCormick’s sentence for reasonableness
“under a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). We find no merit to
McCormick’s challenges to his sentence raised in his pro se
supplemental brief. Specifically, we conclude that the court’s
observation that McCormick would be near the end of his life
when he was released from prison, considering the severity of
his health conditions, in no way suggests that the court was
biased against McCormick. Also unavailing is McCormick’s
challenge to sentencing enhancements recommended by the
probation officer based on specific offense characteristics;
McCormick’s Sentencing Guidelines range was not calculated based
on these enhancements, but on his status as a career offender.
Finally, we find no evidence to support McCormick’s claim that
the Government breached the plea agreement.
We agree with the parties, however, that the district court
plainly erred by adjudging McCormick permanently ineligible to
receive federal benefits. Section 862(a)(1)(C) provides that
“[a]ny individual who is convicted of any Federal or State
offense consisting of the distribution of controlled substances
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shall . . . upon a third or subsequent conviction for such an
offense be permanently ineligible for all Federal benefits.” 21
U.S.C. § 862(a)(1)(C) (emphasis added). Because distribution is
not an element of the offense to which McCormick pled guilty, we
conclude that the district court plainly erred by adjudging
McCormick permanently ineligible for federal benefits.
In accordance with Anders, we have reviewed the entire
record and have found no other meritorious grounds for appeal.
We therefore grant the Government’s motion, affirm the
conviction, affirm the sentence in part, vacate the portion of
the sentence adjudging McCormick permanently ineligible to
receive federal benefits, and remand for further proceedings. 2
We also direct the district court to correct the judgment to
reflect that McCormick pled guilty to manufacturing 50 grams or
more of a mixture and substance containing a detectable amount
of methamphetamine. See Fed. R. Crim. P. 36.
This court requires that counsel inform McCormick, in
writing, of his right to petition the Supreme Court of the
United States for further review. If McCormick requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, counsel may move in this court for leave to
2
On remand, the district court may assess whether denial of
federal benefits is appropriate under another subsection of 21
U.S.C. § 862.
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withdraw from representation. Counsel's motion must state that
a copy thereof was served on McCormick. 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 IN PART,
VACATED IN PART,
AND REMANDED
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