                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 12-4013


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

THOMAS J. ERNST,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Claude M. Hilton, Senior
District Judge. (1:11-cr-00116-CMH-1)


Submitted:   June 25, 2012                 Decided:   July 16, 2012


Before MOTZ, KING, and THACKER, Circuit Judges.


Affirmed in part, dismissed in part, and remanded by unpublished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


Rebecca S. Colaw,    REBECCA S. COLAW, P.C., Suffolk, Virginia,
for Appellant. Neil H. MacBride, United States Attorney, Thomas
J. Krepp, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Thomas J. Ernst appeals his forty-eight-month sentence

and $4,490,966.08 restitution order following a guilty plea to

endeavoring    to   obstruct   the    administration     of    the    Internal

Revenue Laws, in violation of 26 U.S.C. § 7212(a) (2006), and

failure to file tax returns, in violation of 26 U.S.C. § 7203

(2006).     On appeal, Ernst argues that: (1) he did not knowingly

and   intelligently    waive   his   right    to   appeal;    (2)    his    trial

counsel was constitutionally ineffective for failing to request

a mental evaluation; (3) the district court erred by failing to

sua sponte order a mental evaluation and conduct a competency

hearing; and (4) the district court erred by failing to make

specific     factual   findings      with    respect   to     his    financial

resources, financial needs, and earning ability in making its

restitution order.

            The Government seeks to enforce the appellate waiver

provision of the plea agreement, arguing that Ernst is precluded

from challenging the district court’s restitution order.                   In the

plea agreement, Ernst agreed to waive the right to appeal “the

conviction and any sentence within the statutory maximum . . .

on any ground whatsoever.”           A defendant may, in a valid plea

agreement, waive the right to appeal under 18 U.S.C. § 3742

(2006).     United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.

1990).     An appellate waiver must be “the result of a knowing and

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intelligent        decision      to     forgo    the         right   to    appeal.”      United

States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)

(internal quotation marks and citation omitted).                                  We review de

novo whether a defendant has effectively waived his right to

appeal.       United States v. Marin, 961 F.2d 493, 496 (4th Cir.

1992).

              To     determine          whether          a       waiver    is     knowing    and

intelligent,        we    examine       “the     totality          of     the   circumstances,

including the experience and conduct of the accused, as well as

the accused’s educational background and familiarity with the

terms of the plea agreement.”                       United States v. General, 278

F.3d   389,    400       (4th    Cir.    2002)      (internal           quotation    marks   and

citation      omitted).          Generally,         if       a   court    fully    questions   a

defendant regarding the waiver of his right to appeal during the

Rule   11   colloquy,        the      waiver    is       both      valid    and    enforceable.

United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

However, this court will “refuse to enforce an otherwise valid

waiver if to do so would result in a miscarriage of justice.”

Id. (internal quotation               marks and citation omitted).

              We find that Ernst knowingly and intelligently waived

his right to appeal his convictions and sentence.                                 Ernst asserts

that his waiver was not knowing and intelligent “because there

was an underlying mental condition” and “lack of rationality.”

However,      despite      the     fact    that      Ernst         was    on    medication   for

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depression        at   the   time   of    the    hearing,   nothing     in    the    plea

colloquy transcript indicates that his condition affected his

ability to understand the proceedings or comprehend the rights

he waived in the plea agreement.                   During the Rule 11 hearing,

the   court       specifically      questioned     Ernst    regarding    the    waiver

provision.         Ernst, a sixty-six-year-old man with two college

degrees, a Ph.D candidacy, and a law degree, confirmed that he

had read, reviewed, and understood the plea agreement, and did

not have any questions.              On the record before us, we conclude

that the appellate waiver is valid and enforceable.

              Pursuant to 18 U.S.C. § 3663(a)(3), a district court

may “order restitution in any criminal case to the extent agreed

to    by    the    parties    in    the     plea   agreement.”        Ernst’s       plea

agreement provides: “The defendant agrees to pay restitution to

the        Internal     Revenue       Service       pursuant     to      18     U.S.C.

§ 3663(a)(3),” the full amount to be determined by the court

after the preparation of the presentence report (“PSR”).                              The

district court was authorized to impose restitution by statute,

and   the     imposition      of    $4.49   million    in   restitution       did    not

exceed the statutory maximum.                See United States v. Cohen, 459

F.3d 490, 497 (4th Cir. 2006) (“[A] defendant who has agreed

‘[t]o waive knowingly and expressly all rights, conferred by 18

U.S.C. § 3742, to appeal whatever sentence is imposed,’ . . .

has waived his right to appeal a restitution order.”).                              Thus,

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Ernst’s    challenge         to      the    restitution         order    falls     within      the

scope of the waiver provision and may not be reviewed by this

court.

              The waiver provision, however, does not preclude this

court    from       considering         claims         of    ineffective        assistance      of

counsel,      which       are     not      exempt       from    even     valid     waivers      of

appellate rights.            Nonetheless, claims of ineffective assistance

of counsel should be raised in a 28 U.S.C.A. § 2255 (West Supp.

2010) motion rather than on direct appeal, unless the appellate

record conclusively demonstrates ineffective assistance.                                    United

States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).                                        Because

the   record        before      us      does     not        conclusively    establish         that

Ernst’s trial counsel was ineffective by failing to investigate

Ernst’s       mental      condition         or      failing       to     request       a    mental

evaluation, we decline to review these claims on direct appeal,

and we affirm his convictions.

              We    now    turn       to    Ernst’s         argument     that    the       district

court abused its discretion in failing to sua sponte order a

mental     evaluation           and     conduct        a     competency     hearing.           The

conviction of a defendant when he is legally incompetent is a

violation      of    due     process,        and       Congress    has     safeguarded        this

right    by    providing         that      trial       courts    may    conduct     competency

hearings.       Beck v. Angelone, 261 F.3d 377, 387 (4th Cir. 2001);

United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).

                                                   5
When neither party moves for a competency hearing, the district

court    shall     sua    sponte       order       such    a   hearing         “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 that he is unable to understand the

nature and consequences of the proceedings against him or to

assist properly in his defense.”                          18 U.S.C. § 4241(a).                   In

addition, “[p]rior to the date of the hearing, the court may

order that a psychiatric or psychological examination of the

defendant be conducted.”            § 4244(b).

            A petitioner may make a procedural competency claim by

alleging    that    the    trial       court        failed     to   hold       a     competency

hearing    after    the    petitioner's            mental      competency          was     put   in

issue.     Beck, 261 F.3d at 387.                  To prevail, the petitioner must

establish that the trial court ignored facts raising a “bona

fide    doubt”     regarding       the    petitioner’s            competency          to    stand

trial.      Id.      However,      a     defendant        “need     not    demonstrate           on

appeal that he was in fact incompetent, but merely that the

district court should have ordered a hearing to determine the

ultimate fact of competency.”                  United States v. Banks, 482 F.3d

733, 742 (4th Cir. 2007).                Because the district court “is in a

superior    position       to      adjudge         the     presence       of       indicia       of

incompetency       constituting          reasonable            cause      to       initiate       a

hearing,” we review the district court’s determination that no

                                               6
reasonable cause existed to order a § 4241 competency hearing

for an abuse of discretion.               Id. at 742-43.

               We conclude that the district court did not abuse its

discretion in failing to sua sponte order a mental evaluation or

conduct a competency hearing.                   At sentencing, counsel for Ernst

expressed concern regarding Ernst’s mental health, stating that

Ernst    “is    not    rational”        and    “has       trouble    accepting      things.”

However, when asked for clarification by the district court,

Ernst’s counsel admitted, “I don’t think it’s a basic competency

issue,” and withdrew his request for a mental health evaluation.

Ernst’s trial counsel did not assert that Ernst was “unable to

understand       the    nature      and       consequences          of   the     proceedings

against him or to assist properly in his defense,” as required

under 18 U.S.C. § 4241(a), and Ernst makes no such assertion on

appeal.

               Moreover,         Ernst’s        diagnosis         and      treatment       for

depression alone does not render him incompetent.                                See Hall v.

United       States,    410      F.2d    653,       658    (4th     Cir.   1969)     (“[T]he

presence of some degree of mental illness is not to be equated

with incompetence to be sentenced.”).                       Beyond a broad assertion

that he was “wide-eyed and irrational,” Ernst fails to allege

that    he    has    been   diagnosed         with    an    additional      mental    health

condition,          fails   to     submit       affidavits          from    his     treating

psychiatrist          addressing        his     mental       health,       and     fails   to

                                                7
articulate the impact of his alleged mental condition upon his

ability to understand the proceedings.                    In short, Ernst has not

presented facts that establish a “bona fide doubt” regarding his

competency to stand trial, as required to establish a procedural

competency claim.          The district court therefore did not abuse

its   discretion      by    failing        to     sua    sponte      order        a    mental

evaluation or conduct a competency hearing.

           In   addition,          Ernst     fails       to   establish           that       the

district court violated his substantive due process rights by

convicting    him    and   sentencing           him   while   he     was    incompetent.

“[A] petitioner raising a substantive claim of incompetency is

entitled to no presumption of incompetency and must demonstrate

his incompetency by a preponderance of the evidence.”                                 Beck v.

Angelone, 261 F.3d 377, 388 (4th Cir. 2001).                          Ernst states on

appeal only that he “may or may not have been competent in this

matter.”     Accordingly, he has not established by a preponderance

of the evidence that he was, in fact, incompetent at the time of

sentencing.

           Although        Ernst     is     precluded         from       appealing           the

restitution     order      based      upon        his     appellate        waiver,           the

Government    requests     that     this    court       remand     the     case       for    the

limited purpose of determining a payment schedule that accounts

for   Ernst’s       financial       condition,          pursuant      to     18        U.S.C.

§ 3664(f)(2).         In     fashioning           a     payment      schedule          for     a

                                            8
restitution    judgment,       a   district    court     must    “make       a    factual

finding   keying   the     statutory     factors       [listed    in    18       U.S.C.A.

§ 3664(f)(2)] to the type and manner of restitution ordered.”

United States v. Dawkins, 202 F.3d 711, 716 (4th Cir. 2000).

The district court may satisfy this requirement by adopting the

proposed findings contained within the PSR.                Id.

            Although     the       district    court     adopted       the       proposed

findings set forth in the PSR in this case, as the Government

emphasizes on appeal, the PSR is “devoid of any factual finding

that   keys    [the      defendant’s]         financial     situation            to   the

restitution     schedule       ordered    or    finds     that     the       order    is

feasible.”     Id. at 717.           The PSR stated that, although Ernst

claimed to own gold mines in Colorado worth $300 million to $800

million, the Government questioned the veracity of these claims.

The PSR further noted that Ernst had no known liquid assets or

income, other than Social Security benefits.                     We note that the

district court was authorized to order payment of restitution

due immediately.        See 18 U.S.C. § 3664(f)(3)(A)-(B).                       However,

given the ambiguity regarding Ernst’s financial resources, we

remand this case to the district court to make factual findings

regarding     Ernst’s    current       financial       assets    and     fashion       an

appropriate payment schedule, as the Government has requested on

appeal.



                                         9
              Accordingly,   we   affirm   the   judgment   of    conviction,

dismiss the appeal of the restitution order, and remand for the

district court to make factual findings consistent with this

opinion and determine an appropriate payment schedule for the

restitution order.       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,
                                                        DISMISSED IN PART,
                                                              AND REMANDED




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