United States v. Dixon ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4298
PHILLIP ERNEST DIXON,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., District Judge.
(CR-00-36)
Submitted: January 17, 2002
Decided: February 13, 2002
Before WIDENER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Joseph M. Wilson, Jr., BROWNE, FLEBOTTE, WILSON & HORN,
P.L.L.C., Durham, North Carolina, for Appellant. Benjamin H. White,
Jr., United States Attorney, Sandra J. Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. DIXON
OPINION
PER CURIAM:
Pursuant to a guilty plea to one count of conspiracy to possess with
intent to distribute cocaine base, 21 U.S.C.A. §§ 841, 846 (West 2000
& Supp. 2001), Phillip Dixon was sentenced to 128 months imprison-
ment and five years supervised release. Dixon noted a timely appeal,
contending that the district court abused its discretion in denying his
motion to withdraw his guilty plea. Finding no error, we affirm.
The denial of a motion to withdraw a guilty plea is reviewed for
abuse of discretion by the district court. United States v. Ubakanma,
215 F.3d 421, 424 (4th Cir. 2000). The defendant, however, bears the
burden of demonstrating a fair and just reason for the withdrawal.
Fed. R. Crim. P. 32(e); see also Ubakanma, 215 F.3d at 424. To
determine whether a defendant has met this burden, the court applies
the factors set forth in United States v. Moore, 931 F.2d 245, 248 (4th
Cir. 1991).
Dixon claims that his attorney misled him into pleading guilty
when he convinced Dixon that he would receive no more than ten
years imprisonment. However, as the district court found, Dixon
entered his guilty plea after a comprehensive Fed. R. Crim. P. 11 pro-
ceeding; he understood the charges, acknowledged the truth of the
Government’s factual basis, and stated that he was voluntarily plead-
ing guilty. Furthermore, Dixon’s counsel testified that he exhaustively
reviewed the sentencing guidelines with Dixon, informed him of the
mandatory minimum for the crime charged (ten years), and advised
him that there could be a possible downward departure depending
upon Dixon’s substantial assistance to the Government. Further, the
plea agreement, which Dixon signed, provided that the statutory sen-
tencing range was ten years to life. Therefore, the district court did
not abuse its discretion when it found that Dixon failed to show that
his counsel’s actions constituted a fair and just reason to withdraw his
guilty plea.
Dixon also claims on appeal the claim that he lacked the mental
competency necessary for a voluntary guilty plea. In order to show
incompetence to plead guilty, a defendant must show that "his mental
UNITED STATES v. DIXON 3
faculties were so impaired . . . when he pleaded that he was incapable
of full understanding and appreciation of the charges against him, of
comprehending his constitutional rights and of realizing the conse-
quences of his plea." Shaw v. Martin, 733 F.2d 304, 314 (4th Cir.
1984) (quoting United States v. Truglio, 493 F.2d 574 (4th Cir.
1974)). A clinical psychologist examined Dixon and found him to be
suffering from a personality disorder that did not render him incompe-
tent to stand trial. The district court reviewed this report and approved
its findings. On appeal, Dixon has not provided any materials to sup-
port his possible incompetency, and merely rests upon the perceived
inadequacy of the district court’s determination. Furthermore, the
transcripts of his arraignment and plea hearing do not disclose any
evidence of an impairment. Based upon these facts, a finding that
Dixon was impaired to the degree necessary to render his plea invol-
untary would be highly speculative and contradict the only available
medical evidence on the matter.
Lastly, Dixon, a citizen of Jamaica, claims that his status as a for-
eign national renders his plea moot as he should have been afforded
the opportunity to consult with his embassy. Specifically, Dixon con-
tends that he should be allowed to withdraw his guilty plea because
the Government failed to inform him of his rights under the Vienna
Convention on Consular Relations.
Dixon raises this claim for the first time on appeal. Generally, such
claims are not considered if they were not first presented to the dis-
trict court, absent exceptional circumstances of plain error or funda-
mental miscarriage of justice. Muth v. United States, 1 F.3d 246, 250
(4th Cir. 1993); First Virginia Banks, Inc. v. BP Exploration & Oil
Inc., 206 F.3d 404, 407 n.1 (4th Cir. 2000). Dixon has not presented
any evidence to suggest he qualifies for this very narrow exception.
We therefore affirm the district court’s judgment. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED