UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4570

EARL ANDERSON FRANKLIN,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., District Judge.
(CR-95-276)

Submitted: April 18, 1997

Decided: May 1, 1997

Before MURNAGHAN and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William E. Martin, Federal Public Defender, Gregory Davis, Assis-
tant Federal Public Defender, Greensboro, North Carolina, for Appel-
lant. Walter C. Holton, Jr., United States Attorney, Robert M.
Hamilton, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Earl Franklin was convicted by a jury of being a felon in posses-
sion of a firearm in violation of 18 U.S.C. § 922(g) (1994), for which
he was sentenced to 264 months imprisonment. Franklin's counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), challenging the sufficiency of the evidence and the district
court's decision to upwardly depart in sentencing Franklin. Franklin
has filed a supplemental pro se brief in which he claims that the dis-
trict court erred in finding him competent to stand trial. Finding no
error, we affirm.

Franklin was arrested at his home in High Point, North Carolina,
on October 14, 1995. Officers from the High Point Police Department
had gone to question Franklin in connection with a shooting incident
several days prior. Franklin was carrying a loaded .38 caliber revolver
in his left rear pants pocket. He was charged with being a felon in
possession of a firearm.

A competency hearing was held on March 22, 1996, at which
Franklin and the government produced expert psychiatric testimony.
The government's expert, Dr. Scott Duncan, testified that, based on
his personal evaluation and observation of Franklin and his review of
Franklin's records, Franklin was malingering and, therefore, compe-
tent to stand trial.

Franklin presented the testimony of Dr. Raouf Badawi, a psychia-
trist who had examined Franklin in 1993 and 1994. Badawi stated
that, in his opinion, Franklin "developed a bipolar disorder, which
progressed into a schizoaffective disorder." Based on his conversa-
tions with Franklin's mother and neighbors, Badawi testified that
Franklin had behaved irrationally at times when there were no pend-
ing charges against him and, therefore, he opined, Franklin was not

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malingering. Badawi also testified that Franklin had, at one point,
been diagnosed as schizophrenic by a prison psychiatrist and placed
on antipsychotic medication which greatly improved his behavior and
demeanor. Badawi did not state, however, that Franklin was incompe-
tent to stand trial.

The district court accepted Dr. Duncan's opinion and found Frank-
lin competent to stand trial.

Franklin was tried by a jury in April 1996. Dr. Duncan testified for
the Government as to Franklin's mental capacity and again offered his
opinion that Franklin was malingering. Out of the twelve psychologi-
cal tests administered to Franklin while at FCI Atlanta, Duncan stated
that Franklin demonstrated symptoms of malingering in eleven. Dr.
Duncan also observed Franklin in the courtroom and testified that
Franklin's odd behavior (rocking back and forth, rubbing his hands
on the table, and licking parts of his arms or fingers) was more pro-
nounced when Franklin was in plain view of the jury. Duncan testi-
fied that although he had, at one point, entertained a diagnosis of
schizoaffective disorder, he ruled out this diagnosis because he
believed the productions or behavior exhibited by Franklin were con-
sistent with a conscious production of such symptoms which were
under Franklin's control. Duncan's final diagnosis was antisocial per-
sonality disorder and malingering.

Franklin presented the testimony of Dr. Gary Hoover, a forensic
psychologist. Hoover testified that he saw Franklin"as an individual
with schizotypal personality organization with paranoid themes, that
he had frank and obvious antisocial behaviors, and that he was a
highly dependent individual who had never learned adult independent
skills." When asked if he thought Franklin was malingering, Hoover
replied, "my conclusion was that he was not malingering, although it
is only fair to say that there is ample evidence in his history of behav-
iors that can be consistent with malingering." Finally, Hoover was
unable to say that Franklin could not understand the nature and
wrongfulness of his actions.

Other witnesses testified on Franklin's behalf regarding bizarre
behavior he displayed in the past. For example, police were frequently
called by neighbors reporting strange behavior by Franklin such as

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placing nails, pointed end up, in his yard to keep children out. Frank-
lin was also seen on several occasions dressed in women's clothing
or in clothing inappropriate to the season. One witness testified that,
after his mother's death in 1995, Franklin did not bathe or change his
clothes for approximately four weeks.

At the close of the evidence, the district court properly instructed
the jury on the defense of not guilty by reason of insanity. The jury
returned a verdict of guilty. Franklin appeals.

Franklin's attorney first challenges the sufficiency of the evidence
to support his conviction. This court will affirm a conviction if there
is substantial evidence, viewed in the light most favorable to the gov-
ernment, to support a finding of guilt. Glasser v. United States, 315
U.S. 60, 80 (1942). To establish that a defendant is guilty of posses-
sion of a firearm by a convicted felon, the government must prove
beyond a reasonable doubt: (1) that the defendant knowingly pos-
sessed a firearm which had been shipped or transported in interstate
commerce; (2) that before he possessed the firearm, the defendant had
been convicted of a crime punishable by imprisonment for a term in
excess of one year; and (3) that at the time the defendant possessed
the firearm, his conviction had not been expunged or set aside, nor
had he been pardoned for that conviction or had his civil rights
restored. The evidence presented at Franklin's trial clearly established
each of these elements.

Franklin's attorney next challenges the district court's decision to
depart upward at sentencing. The probation officer calculated Frank-
lin's total offense level at thirty-three. With a criminal history cate-
gory of IV, the resulting guideline range was 188 to 235 months
imprisonment. The Guidelines provide that the district court may
depart upward where the criminal history score underrepresents the
seriousness of the defendant's past criminal conduct or the likelihood
that the defendant will commit another crime. United States Sentenc-
ing Commission, Guidelines Manual, § 4A1.3 (Nov. 1995).

Departures are reviewed under the test set out in United States v.
Hummer, 916 F.2d 186, 192 (4th Cir. 1990). The district court's
determination that a defendant's criminal history category inade-
quately represents his past criminal conduct is a factual question

                     4
reviewed under the clearly erroneous standard. Id. Franklin had only
seven criminal history points which did not take into account over
twenty-nine convictions, or the pending charges in state court, for
which no criminal history points were assigned. Accordingly, the dis-
trict court did not clearly err in finding that category IV did not ade-
quately reflect Franklin's past criminal conduct.

The district court's decision on how far to depart is reviewed for
abuse of discretion. Id. However, the district court should consider
each succeeding category and depart further only after making a find-
ing that the category does not adequately represent the defendant's
past criminal conduct. See United States v. Rusher, 966 F.2d 868,
884-85 (4th Cir. 1992). The district court made the required findings
in this case.

Finally, Franklin challenges the district court's finding that he was
competent to stand trial. A defendant is competent to stand trial if "he
has sufficient present ability to consult with his lawyer with a reason-
able degree of rational understanding and [ ] has a rational as well as
factual understanding of the proceedings against him." Dusky v.
United States, 362 U.S. 402, 402 (1960). The district court's finding
that a defendant was competent to stand trial is reviewed for clear
error. United States v. Hogan, 986 F.2d 1364, 1372 (11th Cir. 1993).
On appeal, "the evidence relating to [the defendant's] competency
must be considered in the light most favorable to the Government."
United States v. Chischilly, 30 F.3d 1144, 1150 (9th Cir. 1994). We
find that, in light of Dr. Duncan's testimony and the district court's
ability to observe and question Franklin, its finding that Franklin was
competent to stand trial was not clearly erroneous. See Id. at 1150
("To the extent that [the district court judge], from his courtroom
observations, assigned more weight to the Government's expert . . .
he was acting within his discretion to do so as a part of his fact-
finding and credibility-weighing functions.").

Franklin claims in his supplemental pro se brief that Dr. Duncan's
findings were invalid because Franklin was not wearing his glasses
during the testing and thus could not see well enough to respond prop-
erly to the questions. However, Dr. Duncan testified that, when
administering tests to Franklin, he noted no visual impairment what-
soever. Duncan stated that it was his standard practice to determine

                    5
first if an individual has any difficulty reading, and if so, he adminis-
ters the test via audio cassette. (Id.).

Franklin's pro se brief could also be interpreted as a challenge to
the jury's verdict against him on his insanity defense. A defendant
bears the burden of proving insanity by clear and convincing evi-
dence. 18 U.S.C. § 17(b) (1994). A defendant is insane if he suffers
from a mental disease or defect which makes him unable to appreciate
the nature or wrongfulness of his acts. The Government provided suf-
ficient evidence through the expert testimony of Dr. Duncan from
which the jury could reasonably conclude that Franklin was not
insane. The jury chose to credit the testimony of Dr. Duncan. We find
this determination not clearly erroneous. See United States v.
Freeman, 804 F.2d 1574, 1577 (11th Cir. 1986).

Franklin has filed "Motions for Further Ammendments [sic] to
Appeal" in which he claims that he was denied effective assistance of
counsel in that his attorney conspired with the government's expert
witness (Dr. Duncan) to assure that Franklin would be found compe-
tent to stand trial. A claim of ineffective assistance of counsel is not
cognizable on direct appeal unless counsel's deficient performance
plainly appears on the face of the record. See United States v.
DeFusco, 949 F.2d 114 (4th Cir. 1991). Rather, these claims must be
raised in a habeas corpus proceeding under 28 U.S.C.A. § 2255 (West
1994 & Supp. 1997). Because ineffective assistance does not plainly
appear on the face of this record, we deny this motion. In addition,
Franklin has filed a "Motion for Supplementary Ammendments [sic]
to Case on Appeal," in which he claims, again, that his attorney was
ineffective and also claims that he was forcibly administered psy-
chotropic drugs. Franklin's ineffective assistance claims may not be
brought on direct appeal. See DeFusco, 949 F.2d at 114. And the por-
tion of the record which Franklin cites in support of his allegation that
he was forcibly medicated fails to support his claim. Accordingly, this
motion is denied, in part, to the extent that Franklin seeks to bring
ineffective assistance of counsel claims. The motion is granted, in
part, to allow Franklin to bring his claim of forced medication. How-
ever, because we find the claim to be without merit, we deny relief.

We have examined the entire record in this case in accordance with
the requirements of Anders, and find no meritorious issues for appeal.

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The court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client 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. Coun-
sel's motion must state that a copy thereof was served on the client.
Counsel's current motion before this court to withdraw is denied.
Franklin's motion for appointment of new counsel is denied as well.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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