US v. Eric Pennington, No. 14-4155 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4155 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC SCOTT PENNINGTON, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. John Preston Bailey, Chief District Judge. (2:13-cr-00034-JPB-JSK-5) Submitted: October 29, 2014 Before DUNCAN and Circuit Judge. KEENAN, Decided: Circuit Judges, November 14, 2014 and DAVIS, Senior Affirmed by unpublished per curiam opinion. Mark K. McCulloch, BROWNSTONE, P.A., Winter Park, Florida, for Appellant. William J. Ihlenfeld, II, United States Attorney, Stephen D. Warner, Assistant United States Attorney, Elkins, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Eric Scott pseudoephedrine Pennington to be pled used guilty in to the possession manufacture of of methamphetamine, in violation of 21 U.S.C. § 841(c)(2) (2012). Pennington raises sentence. several objections to his conviction and We affirm. Pennington first argues that the magistrate judge lacked statutory authority to accept his guilty plea, suggesting that we depart from our holding in United States v. Benton, 523 F.3d 424, 429, 433 (4th Cir. 2008). However, any such change would have to be made by the full court sitting en banc. United States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005). Next, should have accepting Pennington ordered the disabilities. a competency guilty A argues plea district due court that the hearing to is magistrate sua sponte Pennington’s required to judge before mental order a competency hearing sua sponte “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 consequences that he of the is unable to proceedings properly in his defense.” understand against him the or nature to 18 U.S.C. § 4241(a) (2012). and assist We have recognized, “[h]owever, [that] there are no fixed or immutable signs which invariably indicate the need for further inquiry to 2 determine fitness to proceed.” F.3d 263, omitted). 291 (4th Cir. United States v. Moussaoui, 591 2010) (internal quotation marks Our review of the plea colloquy leaves us without doubt that Pennington was capable of understanding the nature and consequences of the proceedings and assisting properly in his own defense. judge did not Accordingly, we conclude that the magistrate abuse his discretion in declining to order a competency hearing sua sponte. Pennington also argues for the first time on appeal that the Government breached the plea agreement by failing to request a sentence reduction for acceptance of responsibility. See Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013) (discussing plain error standard of review). The Government breaches a plea agreement when a promise it made to induce the plea goes unfulfilled. 257, 262 (1971). See Santobello v. New York, 404 U.S. Because the plea agreement conditioned the Government’s duty to request such a reduction on the probation officer’s recommendation and on Pennington’s compliance with the conditions of his release on bond, that duty did not arise here. Therefore, we conclude that the Government did not breach the plea agreement. Finally, Pennington challenges the district court’s imposition of a three-level sentencing enhancement for creating a substantial risk of harm to 3 human life. U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(13)(C)(ii) (2013). Although he contends that the court violated Fed. R. Crim. P. 32(i)(3)(B) by failing to resolve the dispute surrounding the enhancement, enhancement our was review of the uncontested record at the convinces time of us the that the sentencing hearing and that the district court was not obligated to mention it when summarily 32(i)(3)(A). adopting the presentence report. See id. Moreover, contrary to Pennington’s assertion on appeal, the district court did not plainly err in imposing the substantial risk enhancement in light of Pennington’s relevant conduct. * See USSG § 1B1.3(a)(1) (defining relevant conduct); see also Henderson, 133 S. Ct. at 1126-27 (stating standard of review); Gall v. United States, 552 U.S. 38, 51 (2007) (discussing appellate review of sentences). Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED * To the extent Pennington suggests that counsel performed deficiently in failing to contest the substantial harm enhancement, we decline to review this issue on direct appeal. See Benton, 523 F.3d at 435 (providing standard). 4