            Case: 18-13868   Date Filed: 10/30/2019   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-13868
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:17-cr-00038-ELR-LTW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

MONICA RIGSBY,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                             (October 30, 2019)

Before TJOFLAT, JORDAN, and GRANT, Circuit Judges.

PER CURIAM:
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       Monica Rigsby appeals her conviction and 30-month sentence for wire

fraud, in violation of 18 U.S.C. § 1343. On appeal, she argues that: (1) she was not

competent to plead guilty because her medication affected her ability to understand

the proceeding against her; and (2) she received ineffective assistance of counsel.1

                                                I.

       Rigsby pleaded guilty to wire fraud, 18 U.S.C. § 1343, pursuant to a written

plea agreement. During the Rule 11 change-of-plea colloquy, she informed the

district court that she had taken prescription pain medication that affected her

ability to understand. There followed an extended colloquy with the court, with

frequent pauses for Rigsby to consult with her counsel. Rigsby confirmed that,

although her medication did have some effect on her perception, she was able to

communicate with counsel and understood that she was present to enter a guilty

plea to the charges against her. She also confirmed that she had discussed her

guilty plea with her attorney and that she wished to proceed. Rigby’s counsel also

represented to the court that, based on his communication with Rigsby that

morning, he did not think that Rigsby was impaired and he believed that Rigsby

“absolutely” understood what she was doing.




1
  Rigsby also challenged the district court’s calculation of the applicable Sentencing Guidelines
range, but this Court dismissed that claim on the government’s motion pursuant to the appeal
waiver in Rigsby’s plea agreement. See Order dated April 11, 2019.
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      The district court then completed the Rule 11 colloquy and accepted

Rigsby’s guilty plea. Based on its communication with Rigsby throughout the

course of the hearing, the court found that she understood the plea that she was

entering and that her plea was freely and voluntarily entered.

                                          II.

      “The due process clause prohibits the trial or guilty plea conviction of a

person who is mentally incompetent.” United States v. Rodriguez, 751 F.3d 1244,

1252 (11th Cir. 2014) (citation omitted). The standard for competence to plead

guilty is the same as the standard for competence to stand trial; the question “is

whether the defendant has ‘sufficient present ability to consult with his lawyer with

a reasonable degree of rational understanding’ and has ‘a rational as well as factual

understanding of the proceedings against him.’” Godinez v. Moran, 509 U.S. 389,

396, 399 (1993) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (per

curiam)).

      We review a district court’s finding of competence for clear error. See

United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006) (per curiam). “A

finding of fact is clearly erroneous only when we are left with a definite and firm

conviction that a mistake has been committed.” United States v. Hogan, 986 F.2d

1364, 1372 (11th Cir. 1993) (citation omitted).




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      Here, the record supports the district court’s conclusion that Rigsby was

competent to enter a guilty plea. She confirmed that she understood the nature of

the proceedings and that she was able to communicate effectively with her attorney

about her case. Her attorney also confirmed that he was able to discuss the case

with Rigsby and was satisfied that Rigsby was not impaired that morning. And the

district court itself had the opportunity to observe Rigsby’s demeanor and

responses throughout the Rule 11 colloquy. Under the circumstances, we cannot

say that the court clearly erred in finding that Rigsby was competent to enter a

guilty plea.

                                          III.

      Turning to Rigsby’s ineffective assistance of counsel claim, she argues that

her attorney was ineffective for failing to investigate her case and advising her to

enter a guilty plea, and for failing to introduce certain evidence and raise certain

objections at sentencing. Rigsby did not raise this claim in the district court;

consequently, the district court did not have the opportunity to develop an

evidentiary record bearing on her allegations. It “is settled law in this circuit that a

claim of ineffective assistance of counsel cannot be considered on direct appeal if

the claims were not first raised before the district court and if there has been no

opportunity to develop a record of evidence relevant to the merits of the claim.”




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United States v. Franklin, 694 F.3d 1, 8 (11th Cir. 2012) (citation omitted). We

therefore decline to consider Rigsby’s ineffective-assistance claim at this stage.

      Rigsby’s conviction and sentence are

      AFFIRMED.




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