United States v. McDade , 263 F. App'x 324 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5021
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LOUIS MCDADE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:04-cr-00252-F-ALL)
Argued: December 7, 2007 Decided: January 30, 2008
Before MICHAEL and TRAXLER, Circuit Judges, and James P. JONES,
Chief United States District Judge for the Western District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Joseph Lanny Ross, II, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Anne Margaret
Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Louis McDade appeals from his conviction, which is based
on a guilty plea, on one count of being a felon in possession of a
firearm. McDade contends that the district erred by finding that
his plea was entered knowingly and by refusing to reopen its
determination that he was competent to stand trial. Finding no
error, we affirm.
I.
In August 2004 a federal grand jury indicted McDade on a
single count of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). A year later, in August 2005,
the grand jury issued a superceding indictment charging two drug
offenses in addition to the original § 922(g)(1) offense.
McDade’s counsel moved (successfully) for a hearing under
18 U.S.C. § 4241 to determine whether McDade was competent to stand
trial. At the hearing the district court heard testimony from two
expert witnesses. McDade’s expert, Dr. Claudia Coleman, testified
that McDade “function[ed] in the intellectual range of mild mental
retardation,” J.A. 129, and was not competent to stand trial. She
based her opinion on an interview with McDade and the
administration of several tests, including a comprehensive
intelligence test known as the WAIS-III. The government’s expert,
Dr. Tanya Cunic, testified that McDade was competent to stand trial
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and that he operated at an intellectual level that was below
average but above the level of mental retardation. Her opinion was
based on her interviews and observations of McDade at FCI-Butner,
where he was being detained, as well as her administration of an
intelligence test known as the TONI-II. Dr. Cunic administered
this test because she believed the results of the WAIS-III might be
negatively skewed, primarily because of McDade’s poor verbal
skills. After hearing the testimony, the district court found that
McDade was competent to stand trial based on its determination that
Dr. Cunic’s opinion was more reliable and more persuasive than Dr.
Coleman’s.
McDade subsequently reached an agreement with the
government to plead guilty to the § 922(g)(1) count while reserving
the right to appeal on the question of his competency. McDade
later moved for the district court to reopen the competency
hearing, but the court refused. Before accepting the plea
agreement, the district court held a hearing, as required by Rule
11 of the Federal Rules of Criminal Procedure, to determine whether
McDade had entered the agreement knowingly and voluntarily.
Although McDade had some obvious difficulties processing the
information conveyed to him by the court during the Rule 11
hearing, the court ultimately determined that the plea was knowing
and voluntary.
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On appeal McDade raises two issues. First, he argues
that the district court erred in finding that his plea agreement
was entered knowingly. Second, he argues that the district court
abused its discretion by denying his motion to reopen the
competency determination.
II.
The first issue is whether the district court erred in
finding that McDade’s plea was entered knowingly. We review de
novo the validity of a guilty plea. United States v. Goins, 51
F.3d 400, 402 (4th Cir. 1995). Nevertheless, we have observed that
“findings [of fact] by a sentencing court in accepting a plea,”
such as the court’s finding that a defendant entered his plea
knowingly, “constitute a formidable barrier to attacking the plea.”
United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992)
(internal quotation marks omitted).
McDade has not made a sufficient showing to set aside the
district court’s finding that his plea was entered knowingly.
McDade relies heavily on the court’s purported failure to answer
questions he raised during the hearing. Specifically, he points to
an exchange in which the district court stated that, if the case
went to trial, “the government would be required to prove [his
guilt] by competent evidence and beyond a reasonable doubt,” and
McDade responded by stating that he “didn’t understand that last
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part.” J.A. 251. Although McDade argues that the court failed to
adequately answer his question, the record shows otherwise. The
court responded by repeating the standard, listing the particular
facts the government would need to prove, and allowing McDade to
consult with his attorney. After this exchange, McDade stated that
he understood and did not ask any follow-up questions.
McDade also argues that the transcript of the Rule 11
proceeding demonstrates that he did not understand the proceedings
or the nature of the trial rights he was waiving by pleading
guilty. We recognize -- as we must after reading the transcript --
that McDade did have significant difficulty processing the
information the district court was required to convey during the
hearing. But the district court handled the situation
appropriately; it did not prod McDade to give affirmative answers,
and it allowed McDade’s counsel to assist in explaining the
proceedings in a manner that McDade could understand.
Moreover, as the government points out, McDade’s
cognitive difficulties at the plea hearing were consistent with Dr.
Cunic’s testimony at the competency hearing. Dr. Cunic testified
that McDade sometimes had difficulty understanding her questions.
But when she slowed down, explained things in a simpler way, and
allowed McDade to ask questions, his responsiveness and
comprehension improved. Likewise, at the plea hearing, McDade had
apparent difficulty understanding the proceedings, but his
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understanding appeared to improve after he was allowed to ask
questions and have his lawyer explain the information in simpler
terms.
For these reasons, there is no basis to overturn the
district court’s finding that McDade entered his plea agreement
knowingly and voluntarily.
III.
The second issue is whether the district court should
have reopened the competency hearing to reconsider its prior
determination that McDade was competent. McDade does not ask us to
determine as a matter of fact that he is not competent. Instead,
he contends that the district court erred by failing to reopen the
issue and consider additional evidence. We review the district
court’s decision not to reopen the hearing for an abuse of
discretion. See United States v. Banks, 482 F.3d 733, 742-43 (4th
Cir. 2007).
As an initial matter, the government argues that McDade
waived his right to appeal on this issue. The plea agreement
expressly reserves McDade’s “right to appeal the Court’s
determination that the Defendant is competent for purposes of 18
U.S.C. § 4241.” J.A. 236. The government argues that this
reservation applies only to the initial competency determination
and not the subsequent denial of McDade’s motion to reopen the
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competency issue. We disagree. The district court’s refusal to
reopen the competency hearing was the final component of its
consideration of whether McDade was competent to stand trial within
the meaning of 18 U.S.C. § 4241. Therefore, we believe the plea
agreement preserves McDade’s right to argue on appeal that the
district court erred by not reopening the competency hearing.
Nonetheless, McDade has not established that the district
court abused its discretion by refusing to reopen its competency
determination. McDade’s argument rests primarily on an affidavit
from a third expert, Dr. James Hilkey, which McDade submitted after
the competency hearing. In that affidavit Dr. Hilkey opines that
the TONI-II intelligence test is a “substandard measure of
cognitive (intellectual) functioning” and that Dr. Cunic should
have used the WAIS-III, “the best and most readily accepted
standardized measure of adult intelligence.” J.A. 210. McDade
also argues that the district should have reopened the competency
issue based on its observations of McDade’s comprehension
difficulties during the Rule 11 hearing.
These arguments lack merit. Dr. Hilkey’s affidavit did
not present any new evidence supporting the conclusion that McDade
was incompetent. Instead, it simply challenged the methodology
used by the government’s expert. But the district court had
already considered this precise issue about appropriate methodology
at the initial hearing. Both experts explained the intelligence
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tests they administered, and Dr. Cunic specifically articulated the
reasons she chose to administer the TONI-II rather than the WAIS-
III. After hearing this testimony, the district court found that
Dr. Cunic’s opinion was reliable and persuasive. Because Dr.
Hilkey did not address or rebut the specific concerns that led Dr.
Cunic to conclude that the TONI-II was the more appropriate test
for McDade, his affidavit gave the district court no reason to
question its prior determination. In addition, McDade’s cognitive
difficulties at the plea hearing were, as explained above,
consistent with Dr. Cunic’s testimony. In sum, the district court
did not abuse its discretion by refusing to reopen the competency
determination.
* * *
For the reasons stated above, the judgment of the
district court is
AFFIRMED.
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