United States v. David Fountain

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4860
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID DALE SHAWN FOUNTAIN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:12-cr-00132-JAB-1; 1:11-cr-00418-JAB-1)
Submitted: May 30, 2013 Decided: June 5, 2013
Before DAVIS, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Gregory Davis,
Senior Litigator, Winston-Salem, North Carolina, for Appellant.
Clifton Thomas Barrett, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, David Dale Shawn
Fountain pled guilty to five counts of interference with
commerce by robbery, in violation of 18 U.S.C. § 1951(a) (2006),
and to one count of discharging a firearm in connection with a
crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii)
(2006). The district court sentenced Fountain to concurrent
terms of 130 months’ imprisonment on the § 1951(a) counts and a
consecutive term of 120 months’ imprisonment on the § 924(c)
count. Fountain’s counsel has submitted a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), stating that
there are no meritorious grounds for appeal but questioning
whether Fountain’s sentence is substantively reasonable.
Fountain filed a pro se supplemental brief arguing that he was
not competent to plead guilty because of his mental health
problems. We affirm.
A court is required to determine that a defendant is
competent to enter a guilty plea before accepting his plea.
United States v. Nicholson, 676 F.3d 376, 382 (4th Cir. 2012).
Courts apply the same standard in determining a defendant’s
competence to enter a guilty plea or to stand trial: “whether
the defendant has sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding—and
whether he has a rational as well as factual understanding of
2
the proceedings against him.” United States v. Moussaoui, 591
F.3d 263, 291 (4th Cir. 2010) (internal quotation marks
omitted). “As in any criminal case, a competency determination
is necessary only when a court has reason to doubt the
defendant’s competence.” Godinez v. Moran, 509 U.S. 389, 401
n.13 (1993). Here, Fountain does not identify any specific
mental health problem from which he suffers, nor does he provide
any evidence indicating that he lacked competency at the plea
hearing. We have reviewed the record of the Rule 11 hearing and
are satisfied that the district court had no reason to doubt
Fountain’s competence.
Turning to counsel’s challenge to Fountain’s sentence,
we review for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). This
review requires consideration of both the procedural and
substantive reasonableness of the sentence. Id. When, as here,
the sentence is within the properly calculated Guidelines range,
we apply a presumption on appeal that the sentence is
substantively reasonable. United States v. Mendoza-Mendoza, 597
F.3d 212, 216-17 (4th Cir. 2010). Such a presumption is
rebutted only if the defendant shows “that the sentence is
unreasonable when measured against the § 3553(a) factors.”
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (internal quotation marks omitted).
3
Counsel questions whether Fountain’s sentence is
greater than necessary to accomplish the goals of 18 U.S.C.
§ 3553(a) (2006), in light of Fountain’s age, personal history,
and mental health concerns. However, the district court
expressly noted Fountain’s age, personal history, and mental
health concerns but also considered the seriousness of the
offense, the need to protect the public, and the need to promote
respect for the law. We conclude that Fountain fails to
overcome the appellate presumption of reasonableness and that
his sentence is therefore substantively reasonable.
Fountain also attempts to raise claims of ineffective
assistance of counsel. However, claims of ineffective
assistance of counsel are not cognizable on direct appeal unless
the record clearly demonstrates ineffectiveness. United States
v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006); see also
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (“[I]t
is well settled that a claim of ineffective assistance should be
raised in a 28 U.S.C. § 2255 motion in the district court rather
than on direct appeal, unless the record conclusively shows
ineffective assistance.”) (internal quotation marks omitted).
Because our review of the record discloses no conclusive
evidence of ineffective assistance, we decline to consider these
claims at this time.
4
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This Court requires that counsel inform Fountain, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Fountain requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this Court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Fountain.
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
5