United States v. Dwayne Frazier , 576 F. App'x 184 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4462
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWAYNE FRAZIER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:11-cr-00095-MJG-2)
Argued: March 20, 2014 Decided: June 20, 2014
Before TRAXLER, Chief Judge, MOTZ, Circuit Judge, and Max O.
COGBURN, Jr., United States District Judge for the Western
District of North Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Cogburn wrote the
opinion, in which Judge Motz joined. Chief Judge Traxler wrote
a separate concurring opinion.
ARGUED: Doug Keller, Washington, D.C., for Appellant. John
Walter Sippel, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
COGBURN, District Judge:
Dwayne Frazier pled guilty to one count of carjacking in
contravention of 18 U.S.C. § 2119 and received a sentence of 144
months imprisonment. Frazier challenges his conviction, arguing
that the district court erred by declining to hold a competency
hearing after defense counsel raised concerns regarding
Frazier’s ability to aid in his own defense at trial. Frazier
also contends that the district court committed reversible error
by failing to apply the proper sentencing standard and by
failing to independently exercise its sentencing discretion
before accepting Frazier’s plea. For the reasons that follow,
we affirm.
I.
In January of 2012 a grand jury in the District of Maryland
returned a six-count superseding indictment against Frazier and
a co-defendant (“the indictment”). The indictment alleged the
following charges: a conspiracy to commit carjacking, in
violation of 18 U.S.C. § 371; two substantive carjacking counts,
in violation of 18 U.S.C. § 2119; two counts of possession and
brandishing of a firearm in furtherance of a crime of violence,
in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and possession of
a firearm by a convicted felon, in violation of 18 U.S.C. §
922(g).
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A.
The Friday before Frazier’s trial was to begin, defense
counsel filed a letter under seal with the district court
detailing his concerns regarding his client’s competency to
proceed to trial. Among defense counsel’s concerns were
Frazier’s ability to “understand the pros and cons of trial
versus a plea”; “to assist in his defense”; and to
“intelligently elect whether to testify or not.” S.J.A. 1.
The following Monday, the district court inquired into
these concerns with defense counsel and Frazier, outside of the
presence of the government. After being assured by the district
court that nothing disclosed during the ex parte discussion
would be considered during sentencing, defense counsel explained
to the district court that, based on approximately “a dozen
visits” with his client, he believed Frazier to be “habitually
under the use [sic] of narcotics at the Chesapeake Detention
Facility.” S.J.A. 5. Defense counsel explained that during his
visits with Frazier he “noticed stains on his fingernails.” Id.
He noted that Frazier’s eyes were “glassy” and that Frazier
could not pay “any degree of attention.” Id. Defense counsel
also noted that Frazier “giggled and was giddy at inappropriate
moments.” Id. Counsel explained that he believed such supposed
narcotic use affected Frazier’s competency to proceed to trial
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principally because Frazier “may or may not be able to assist”
in his own defense. S.J.A. 5-6.
Frazier discussed his mental health status with the court
and attributed his behavior to the high levels of stress and
anxiety he was experiencing. Frazier explained that he had not
seen his family in many years, including a two-year-old son whom
he had not seen at all. He explained that he had been
incarcerated for 16 years prior to being charged in the instant
case and the prospect of an additional 33 years of imprisonment
should he be convicted pushed his “stress level . . . off the
chart.” S.J.A. 9. Since his incarceration he had been placed
on a series of medications including Neurontin and Prozac, and
while he admitted that he “smoke[ed]” and that this was a
“problem at the Chesapeake Detention Center,” he also explained
that he had never had a positive urinalysis “for any substance.” 1
S.J.A. 8.
After hearing all such testimony, the district court
determined that there was no basis to find Frazier incompetent
1
It is unclear what type of substance Frazier was admitting
to smoking, and defense counsel did not inquire into the matter
any further. The district court explained that the stains on
Frazier’s fingers, which defense counsel noted in his colloquy,
were not indicative of incompetence because it was not clear
what substance Frazier was smoking. The district court opined
that they could have been tobacco stains, or they could be from
the use of “marijuana or something else.” S.J.A. 11.
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to proceed to trial. The district court explained that, at its
request, the United States Marshal’s Office conferred with
authorities at the detention facility where Frazier was being
held, who confirmed that there was no indication that Frazier
had taken any illegal drugs. The district court also noted
that, as recently as the week before, Frazier had written
letters to the court in which he had no difficulty expressing
himself. The district court explained that the letters
contained no indication that Frazier was delusional or had any
difficulty making judgments. While the district court accepted
as true defense counsel’s observations of his client, the court
concluded that there was no reason to suspect that Frazier was
incompetent to proceed to trial. While Frazier did seem to
giggle at inappropriate moments, the district court explained
that such behavior “just seem[ed] to be his manner.” S.J.A. 11.
B.
After discussing Frazier’s competency outside the presence
of the government, the district court then turned to jury
selection in Frazier’s trial. Moments before that was to begin,
however, the parties notified the district court that they had
reached a plea agreement in principle and requested a brief
recess for the government to prepare a written agreement.
Frazier subsequently signed a plea agreement pursuant to
FED.R.CRIM.P. 11(c)(1)(C), under which the parties agreed to a
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proposed 144 month sentence. Frazier would plead guilty to
Count Two of the Indictment, one of the substantive carjacking
counts, and in exchange the government agreed to dismiss the
remaining counts in the Indictment.
The district court proceeded through a lengthy colloquy
with Frazier regarding the terms of the plea agreement during
which it explained that if the plea was accepted, the sentence
imposed would be 144 months. The district court also conducted
further inquiry into Frazier’s competency before fully advising
Frazier of the rights he would have at trial including his right
to testify, the presumption of innocence, the government’s
burden, and his right to appeal should he be convicted. After
being so advised, Frazier confirmed that he still wished to
plead guilty and the court accepted his plea.
Upon Frazier’s request and consent by the government, the
district court then proceeded directly to sentencing. The
district court began by pronouncing Frazier’s criminal history
category, the stipulated offense level under the proposed plea
agreement, and the applicable guideline range of 135 to 168
months. The district court then allowed the government, defense
counsel, and Frazier the opportunity to speak. Defense counsel
stated that Frazier had asked “several intelligent questions”
and that defense counsel believed that Frazier was competent to
proceed with the plea hearing. J.A. 50-51.
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The district court then considered the proposed 144 month
sentence, noting that such a sentence was consistent with the
plea agreements offered to Frazier’s co-defendants. The
district court concluded that, having already tried one of
Frazier’s co-defendants and being thoroughly familiar with the
particular facts of the case, the proposed sentence was “in the
range of reasonableness,” and ultimately accepted the 144 month
sentence as the appropriate term of imprisonment. J.A. 75.
II.
Frazier now appeals his sentence, contending that (1) the
district court erred by not holding a competency hearing to
determine whether he could proceed to trial; and (2) that the
district court erred by sentencing him to the agreed upon 144
month term of imprisonment.
A.
We hold that the district court did not abuse its
discretion in failing to order a competency hearing. Title 18,
United States Code, Section 4241(a) requires a district court to
hold such a competency hearing “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 nature and
consequences of the proceedings against him or to assist
properly in his defense.” 18 U.S.C. § 4241(a). Even if no
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motion is made by counsel, “[t]he district court must sua sponte
order a competency hearing if reasonable cause is demonstrated.”
United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).
Whether reasonable cause has been demonstrated, however, is left
to the discretion of the district court. Id. at 1289.
Frazier’s challenge on appeal is a “procedural competency
claim,” that is, he need not demonstrate that he was in fact
incompetent at the time of his guilty plea and sentencing, but
merely that the district court erred by not ordering a
competency hearing. United States v. Banks, 482 F.3d 733, 742
(4th Cir. 2007). “To prevail, the defendant must establish that
the trial court ignored facts raising a bona fide doubt
regarding the defendant's competency to stand trial.” Walton v.
Angelone, 321 F.3d 442, 459 (4th Cir. 2003) (internal quotation
marks omitted). 2
We review the district court’s determination that no
reasonable cause existed to order a competency hearing for abuse
of discretion, under which, “this Court may not substitute its
2
While Frazier waived his right to appeal in his plea
agreement, a criminal defendant may not “plead guilty unless he
does so ‘competently and intelligently.’” Godinez v. Moran, 509
U.S. 389, 396 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458,
468 (1938)).
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judgment for that of the district court; rather, we must
determine whether the court's exercise of discretion,
considering the law and the facts, was arbitrary or capricious.”
Mason, 52 F.3d at 1289.
Appellant’s principal contention is that the district court
should have deferred to defense counsel’s impression that he was
under the influence of narcotics rendering him unable to assist
in his own defense. He further contends that the district
court’s observations regarding Frazier’s competency were
“qualitatively less meaningful” than those of defense counsel,
who had the “unique vantage point” of observing his behavior
numerous times over a six-month period. According to appellant,
the district court’s interaction with him was brief and involved
“little back-and-forth discussion.”
Besides defense counsel’s own statements of what he and his
investigators had observed, nothing before the district court
suggested that Frazier was incompetent to assist in his own
defense. The district court accepted as true defense counsel’s
impression, but determined that reasonable cause did not exist
to suspect that Frazier was incompetent to stand trial in the
face of other available evidence. See Mason, 52 F.3d at 1290
(“The trial court must look at the record as a whole and accept
as true all evidence of possible incompetence in determining
9
whether to order a competency hearing.”) (internal quotation
marks omitted).
“The district court should examine all of the record
evidence pertaining to the defendant's competence, including:
(1) any history of irrational behavior; (2) the defendant's
demeanor at and prior to sentencing; and (3) prior medical
opinions on competency.” United States v. Moussaoui, 591 F.3d
263, 291 (4th Cir. 2010) (citing United States v. General, 278
F.3d 389, 397 (4th Cir. 2002)) (internal quotation marks
omitted). Here, the district court properly considered that
Frazier had not tested positive for drug use at the detention
facility where he was being held, a fact which was bolstered by
Frazier’s own statement that although he “smoked,” he had never
tested positive during any urinalysis. Instead, Frazier
attributed any odd behavior that defense counsel may have
noticed to stress and anxiety, for which he was prescribed
medication.
The district court further noted that Frazier, in a series
of pro se letters to the court, had demonstrated that he was
clearly capable of expressing himself and was not delusional.
Frazier contends that such statements indicate that the district
court applied the wrong standard in determining his competency.
Under § 4241(a), a competency hearing is required if there is
reasonable cause to believe a defendant is “unable to understand
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the nature and consequences of the proceedings against him or to
assist properly in his defense.” 18 U.S.C. § 4241(a) (emphasis
added). According to Frazier, the district court’s statements
indicate that it failed to consider whether he was competent to
assist in his own defense.
A complete and thorough review of the transcript, however,
reveals that this argument mischaracterizes the district court’s
analysis during the ex parte hearing. Furthermore, it puts the
cart before the horse in the § 4241 analysis in that it assumes
the district court had determined that Frazier was suffering
from a mental disease or defect. By its terms, § 4241
presupposes that before a district court analyzes the effect a
defendant’s mental disease or defect may have on defendant’s
competency to understand the nature and consequences of the
proceedings against or to assist properly in his defense, it has
already found that the defendant does indeed suffer from such a
mental disease or defect. Here, the district court’s
questioning and analysis indicates that it was simply
considering all available evidence to determine whether Frazier
suffered from any mental affliction to begin with. After
properly determining that Frazier was not suffering from a
mental disease or defect, there was no need to continue the
analysis. The fact that Frazier was taking Neurontin and Prozac
11
does not necessarily mean that he was suffering from a mental
disease or defect.
Frazier suggests that the district court should have
ordered a psychiatric evaluation under § 4241(b), but provides
no indication of how the district court abused in its discretion
in declining to do so. Setting aside the fact that subsection
(b) provides that “the court may order a psychiatric or
psychological examination,” nothing in the record suggests that
such an examination would have aided the district court in its
determination. 18 U.S.C. § 4241(b) (emphasis added). Frazier
contends that an evaluation was warranted because the source of
Frazier’s cognitive difficulty was not clear. Again,
Appellant’s argument assumes too much by concluding that Frazier
was indeed suffering from cognitive difficulty when, besides
defense counsel’s impression, nearly all the available evidence
was to the contrary. As the district court noted, Frazier may
have exhibited odd behavior, but that “just seem[ed] to be his
manner.” And when Frazier was allowed the opportunity to speak
about his counsel’s concerns, he attributed his odd behavior to
stress, depression, and the medication he had been prescribed.
Frazier did not show any sign of incompetency during the ex
parte hearing or the sentencing hearing. He was able to
understand the district court’s questions and concerns without
any difficulty and respond precisely and cogently. Further,
12
when the issue of Frazier’s competency arose during the plea
hearing, defense counsel abandoned his earlier concerns and
stated that he believed Frazier was “competent to proceed.”
J.A. 50-51.
The requirement of § 4241(a) that the district court grant
a competency hearing when reasonable cause exists cannot be
expanded to require such a hearing whenever defense counsel
raises concerns regarding his client’s competency or where a
defendant takes prescribed medication. Ultimately, it is up to
the district court in its discretion to determine whether
reasonable cause exists to require a competency hearing. We
therefore find that the district court did not abuse its
discretion in failing to order a hearing to determine Frazier’s
competency to stand trial.
B.
Appellant next contends the district court erred by
deferring to the plea agreement in determining Frazier’s
sentence of 144 months imprisonment. The plea agreement in this
case was proffered pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C). Under Rule 11(c)(1)(C), the parties may
stipulate that “a specific sentence or sentencing range is the
appropriate disposition of the case.” FED.R.CRIM.P. 11(c)(1)(C).
“[S]uch a recommendation or request binds the court once the
court accepts the plea agreement.” Id. In this case, the
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parties agreed in the plea agreement that 144 months
imprisonment was the appropriate sentence.
Appellant contends that the district court erred by not
first independently determining the appropriate sentence and
then, considering that sentence, deciding whether it could
accept defendant’s plea. Title 18, United States Code, Section
3553(a) requires district courts to “impose a sentence
sufficient, but not greater than necessary, to comply with the”
four congressionally mandated goals of sentencing. 18 U.S.C. §
3553(a)(2). In determining the appropriate sentence for a
defendant, § 3553(a) requires the court to consider these goals
as well as the other factors listed in subsection (a).
Appellant contends that the district court erred because it
failed to consider these factors in determining Frazier’s
sentence. According to Appellant, the district court applied
the wrong standard and accepted the plea because the recommended
144 month sentence was “in the range of reasonableness.” J.A.
75; see United States v. Tucker, 473 F.3d 556, 561 (4th Cir.
2007) (holding that a district court’s mission in sentencing is
not to impose a ‘reasonable’ sentence but rather, one
sufficient, but not greater than necessary, to comply with the
purposes of § 3553(a)). By not first determining the
appropriate sentence, Appellant argues, the district court
“abdicat[ed] its constitutional duty to exercise its own
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independent judgment in sentencing Mr. Frazier.” Appellant’s
Br. 38.
The government contends that this court need not reach this
issue as Frazier waived his right to appeal his sentence in his
plea agreement and that this portion of his appeal must be
dismissed. “Whether a defendant has effectively waived his
statutory right to appeal his sentence is a question of law
subject to de novo review.” General, 278 F.3d at 399. We “will
enforce the waiver if it is valid and the issue appealed is
within the scope of the waiver.” United States v. Davis, 689
F.3d 349, 355 (4th Cir. 2012). Frazier’s plea agreement
contains the following provision:
The Defendant and this Office knowingly waive all
right . . . to appeal whatever sentence imposed . . .
except as follows: (i) the Defendant reserves the
right to appeal any sentence to the extent that it
exceeds 144 months imprisonment; and (ii) this Office
reserves the right to appeal any term of imprisonment
to the extent that it is below 144 months’
imprisonment.
J.A. 85.
“The validity of an appeal waiver depends on whether the
defendant knowingly and intelligently agreed to waive the right
to appeal.” United States v. Blick, 408 F.3d 162, 169 (4th Cir.
2005). Whether an appeal waiver was knowing and intelligent is
determined based on the totality of the circumstances and “must
depend, in each case, upon the particular facts and
15
circumstances surrounding that case, including the background,
experience, and conduct of the accused.” Id. (quoting United
States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992)).
In this case, the record fully establishes that Frazier
knowingly and intelligently waived his right to appeal his
sentence if it did not exceed 144 months. During the plea
colloquy the district court unambiguously informed Frazier of
the appeal waiver in his plea agreement. The district court
explained that should he be convicted at trial, he would have
the right to appeal his conviction. By signing the plea
agreement, the district court explained, he would be waiving his
right to appeal the conviction. The district court also
explained that under the plea agreement Frazier would waive his
right to appeal any sentence not greater than 12 years.
Frazier’s unequivocal response was that he understood and that
he wished to move forward with his guilty plea. Moreover,
Frazier discussed the plea agreement with defense counsel and
confirmed that he was satisfied that he was “doing the right
thing” by waiving his right to appeal any sentence in excess of
12 years. J.A. 55.
Appellant contends that the appeal waiver is not valid
because “the district court never validly accepted” the plea
agreement. Appellant’s Br. 47. Appellant contends that because
the district court failed to exercise its sentencing authority
16
to independently determine the appropriate sentence, the plea
agreement was never validly accepted, and because the plea was
never validly accepted, the plea waiver has no vitality.
Whether the district court was required to consider the §
3553(a) factors to determine the appropriate sentence before
accepting Frazier’s plea has no impact on the valid appeal
waiver in the plea agreement. The acceptance of a plea and
sentencing are two separate and distinct phases of criminal
procedure. Acceptance of a plea is governed by Federal Rule of
Criminal Procedure 11(b) while sentencing is governed by Rule
32. Not only is there no binding authority for Appellant’s
proposition, Federal Rule of Criminal Procedure 11(d) recognizes
that acceptance of a plea is distinct from sentencing, as a plea
may be withdrawn “after the court accepts the plea, but before
it imposes sentence.” FED.R.CRIM.P.11(d)(2). Because Frazier
knowingly and intelligently waived his right to appeal any
sentence in excess of 12 years pursuant to his plea agreement,
we dismiss his sentencing challenge.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
17
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TRAXLER, Chief Judge, concurring in the result:
I agree, for the reasons expressed by the majority, that
the district court did not abuse its discretion in failing to
order a competency hearing. However, because my analysis of the
other issue Frazier raises differs from that of the majority, I
write separately.
When a defendant pleads guilty to a charged offense,
Federal Rule of Criminal Procedure 11(c)(1)(C) allows the
parties to “agree that a specific sentence or sentencing range
is the appropriate disposition of the case.” When the parties
reach this type of agreement (“a C-plea”), “the court may accept
the agreement, reject it, or defer” its decision until after
reviewing the presentence report. Fed. R. Crim. P. 11(c)(3)(A).
Yet although the court is free to accept or reject the plea
agreement, the parties’ agreed-upon sentence “binds the court
once the court accepts the plea agreement.” Fed. R. Crim. P.
11(c)(1)(C). Frazier contends that the district court erred in
accepting his C-plea without finding that the agreed-upon
sentence was sufficient but not greater than necessary to serve
the sentencing goals identified in 18 U.S.C. § 3553.
The government argues that we need not review the merits of
Frazier’s argument because Frazier’s plea agreement contains a
waiver of his right to appeal a sentence of 144 months, the
sentence Frazier received. I disagree. If Frazier is correct
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that the district court committed reversible error in accepting
the plea agreement, then the agreement is invalid and neither
side is bound by the terms therein, including the appellate
waiver. See United States v. Portillo-Cano, 192 F.3d 1246, 1250
(9th Cir. 1999). I therefore turn to the merits of Frazier’s
argument.
Because Frazier asserts it for the first time on appeal,
our review is for plain error only. See United States v. Olano,
507 U.S. 725, 732 (1993). To succeed on plain-error review, a
defendant must show: (1) there was error, (2) the error was
plain, and (3) the error affected his substantial rights. See
id. Even if a defendant can satisfy these requirements,
correction of the error remains in the court’s discretion, which
it “should not exercise . . . unless the error seriously affects
the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks and alteration
omitted).
Sentencing Guidelines § 6B1.2(c) governs whether a district
court should approve a plea agreement that includes a specific
sentence. The policy statement states that
the court may accept the agreement if the court is
satisfied either that:
(1) the agreed sentence is within the applicable
guideline range; or
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(2) (A) the agreed sentence is outside the applicable
guideline range for justifiable reasons; and (B) those
reasons are set forth with specificity in the
statement of reasons form.
U.S.S.G. § 6B1.2(c) p.s.; see Freeman v. United States, 131 S.
Ct. 2685, 2692 (2011) (plurality opinion); id. at 2696
(Sotomayor, J., concurring in the judgment).
Here, the district court explicitly noted that the parties
had stipulated that the applicable guideline range was 135 to
168 months, and Frazier does not argue otherwise now. In
arguing that the district court’s finding that the agreed-upon
sentence was reasonable did not provide a sufficient basis for
the district court to adopt the plea agreement, Frazier does not
make reference to U.S.S.G. § 6B1.2(c). Rather, he argues that,
in order to validly adopt the agreement, the district court
needed to explicitly find that the agreed-upon sentence was
“‘sufficient, but not greater than necessary’” to accomplish the
goals of sentencing. Kimbrough v. United States, 552 U.S. 85,
101 (2007) (quoting 18 U.S.C. § 3553(a)). Essentially, his
argument would allow the district court to accept a C-plea only
if the agreed-upon sentence were exactly the sentence that the
district court would have imposed if left to its own devices. I
am not aware of any case that has limited a district court’s
discretion regarding whether to accept a C-plea in this way, and
such a limitation would seem to be at odds with U.S.S.G. §
21
6B1.2(c). Thus, in my view, the district court did not err –
and certainly did not plainly err – in approving the agreement.
22