                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4388


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROY MELVIN HOPKINS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Benson Everett Legg, Chief District
Judge. (1:06-cr-00311-BEL-1)


Submitted:   April 16, 2010                    Decided:    May 28, 2010


Before TRAXLER,   Chief   Judge,   and   NIEMEYER   and   KING,   Circuit
Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Sicilia Chinn Englert, LAWLOR & ENGLERT, LLC, Greenbelt,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Christopher Mason, Special Assistant United States
Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Roy   Melvin     Hopkins   appeals   his   conviction      and    100-

month sentence for one count of possession of a firearm after a

felony conviction in violation of 18 U.S.C. § 922(g) (2006).

For the reasons that follow, we affirm in part, vacate in part,

and remand.

          Hopkins, who pled guilty without the benefit of a plea

agreement,    challenges    his   conviction   on    the   ground    that   the

district court, in conducting its Fed. R. Crim. P. 11 colloquy,

did not take adequate steps to ensure he was competent to enter

a plea of guilty.       As the colloquy commenced, the district court

asked the following series of questions:

          Q:     Have you ever been treated for              narcotics
                 addiction or mental illness, sir?

          A:     Yes.

          Q:     And which of those applies?

          A:     Mental.

          Q:     And are you now on a medication?

          A:     Yes.

          Q:     And which medication is that, sir?

          A:     Like six different        medications.       I     can’t
                 pronounce them.

          Q:     So that you’re taking a number of drugs?

          A:     Yes.

          Q:     And –


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              A:     Yes.

              Q:     And did you take some earlier today?

              A:     Yes.

              Q:     And do these drugs help you, help you, or do
                     they make you feel out of it, so to speak?

              A:     They help me a little bit.

              Q:     As we sit here today, are you able to follow
                     me?

              A:     Yes.

Hopkins argues that his indication that he was on medications,

coupled with his demeanor during the proceedings, should have

caused the court to conduct a more lengthy inquiry into his

competence.        We disagree.

              Because Hopkins did not move to withdraw his plea, we

review for plain error.           See United States v. Martinez, 277 F.3d

517, 525 (4th Cir. 2002).              To establish plain error, Hopkins

must show that:          (i) an error occurred; (ii) the error is plain;

and (iii) the error affected his substantial rights.                       See United

States v. Smith, 441 F.3d 254, 271 (4th Cir. 2006).                         Prior to

accepting a defendant’s guilty plea, it is the responsibility of

the court to determine that the defendant is competent to enter

the   plea.        See   United   States      v.    Damon,    191   F.3d    561,   564

(4th Cir. 1999).            With a medicated defendant, a court should

ascertain      the    effect,     if   any,        of   the   medication     on    the

defendant’s ability to make a knowing and voluntary plea.                          See


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id. (finding error in the district court’s failure to determine

the effect of defendant’s medication on defendant’s ability to

enter a voluntary plea).

               Here, we find that the district court conducted an

appropriate inquiry into the effect of Hopkins’s medication.                               In

light    of     the     whole   record,      we       find    that   the   court    did    not

plainly err in conducting its colloquy.                              We therefore affirm

Hopkins’s conviction.

               Hopkins challenges his 100-month sentence on the basis

that the district court impermissibly accorded a presumption of

validity to a within-Guidelines sentence.                             During sentencing,

the     district        court   said        the       following:        “The    sentencing

guidelines are no longer mandatory.                          They are merely advisory.

. . . Under the Fourth Circuit case law, the Advisory Guideline

sentence is presumptively reasonable, and the judge must have a

good    reason         rooted   in    the     statute        for     imposing   a   variant

sentence.”

               Despite the district judge’s explanation that he was

aware     the      Guidelines        were    advisory,         his    application     of    a

presumption of reasonableness to a sentence within the Guideline

range was in error.             The Supreme Court has explicitly cautioned

that the presumption of reasonableness “is an appellate court

presumption . . . . [T]he sentencing court does not enjoy the

benefit       of   a    legal   presumption           that    the    Guidelines     sentence

                                                  4
should apply.”       Rita v. United States, 551 U.S. 338, 351 (2007).

Further, the Court recently confirmed that a district court’s

erroneous     treatment     of    the    Guidelines            range    as   presumptively

reasonable is not cured by recognition that the Guidelines are

advisory:

          In this case, the Court of Appeals quoted the
     above language from Rita but affirmed the sentence
     anyway after finding that the District Judge did not
     treat the Guidelines as mandatory. That is true, but
     beside the point.    The Guidelines are not only not
     mandatory on sentencing courts; they are also not to
     be presumed reasonable.   We think it plain from the
     comments of the sentencing judge that he did apply a
     presumption of reasonableness to [the defendant]’s
     guideline range.   Under our recent precedents, this
     constitutes error.

Nelson   v.    United   States,         129       S.   Ct.     890,    892    (2009).        We

conclude      here   that   the    district            court    improperly         applied    a

presumption of reasonableness to the advisory Guidelines range,

and for that reason, we vacate Hopkins’s sentence and remand for

new sentencing.

              We dispense with oral argument because the facts and

legal    contentions      are    adequately            presented       in    the    materials

before   the    court   and      argument         would      not   aid      the    decisional

process.

                                                                       AFFIRMED IN PART,
                                                                        VACATED IN PART,
                                                                            AND REMANDED




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