US v. David Fountain, No. 12-4860 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4860 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID DALE SHAWN FOUNTAIN, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 whether no meritorious Fountain s grounds sentence for is appeal but substantively questioning reasonable. Fountain filed a pro se supplemental brief arguing that he was not competent problems. to plead guilty because of his mental health 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. F.3d 263, omitted). is 291 (4th Cir. 2010) (internal quotation marks As in any criminal case, a competency determination necessary only when a defendant s competence. n.13 United States v. Moussaoui, 591 (1993). Here, court has reason to doubt the Godinez v. Moran, 509 U.S. 389, 401 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. review Gall v. United States, 552 U.S. 38, 51 (2007). requires consideration of both the substantive reasonableness of the sentence. This procedural Id. and When, as here, the sentence is within the properly calculated Guidelines range, we apply a presumption substantively reasonable. F.3d 212, rebutted 216-17 only unreasonable United States if when v. (4th the on appeal that the sentence is United States v. Mendoza-Mendoza, 597 Cir. 2010). defendant measured shows against Montes-Pineda, Such 445 presumption the sentence the § 3553(a) F.3d 375, 2006) (internal quotation marks omitted). 3 that a 379 is is factors. (4th Cir. Counsel greater than questions necessary whether to Fountain s accomplish the sentence goals of 18 is U.S.C. § 3553(a) (2006), in light of Fountain s age, personal history, and mental expressly health health noted concerns. Fountain s concerns but also However, age, the personal history, considered the district court and seriousness mental 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. v. Baldovinos, 434 F.3d 233, 239 (4th Cir. United States 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 ineffective Because our appeal, assistance. ) review of unless the (internal the record record conclusively quotation discloses shows marks omitted). 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 before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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