                            UNPUBLISHED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             Decided:    November 14, 2014


Before DUNCAN and    KEENAN,    Circuit   Judges,    and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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     Pennington            pled       guilty       to    possession          of

pseudoephedrine          to        be      used            in        the      manufacture              of

methamphetamine, in violation of 21 U.S.C. § 841(c)(2) (2012).

Pennington      raises      several        objections            to    his        conviction          and

sentence.      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,       Pennington         argues          that      the     magistrate             judge

should   have    ordered       a    competency             hearing          sua    sponte          before

accepting      the      guilty          plea         due        to     Pennington’s                mental

disabilities.           A     district         court        is       required           to    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    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) (2012).                              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.”                United States v. Moussaoui, 591

F.3d    263,    291    (4th       Cir.   2010)    (internal       quotation      marks

omitted).       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.         Accordingly, we conclude that the magistrate

judge   did    not    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.               See Santobello v. New York, 404 U.S.

257, 262 (1971).            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    human    life.      U.S.    Sentencing

                                          3
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,      our     review    of   the    record       convinces       us    that      the

enhancement       was    uncontested       at    the    time     of    the        sentencing

hearing and that the district court was not obligated to mention

it   when    summarily       adopting    the    presentence       report.              See   id.

32(i)(3)(A).         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.       We dispense with oral argument because the facts and

legal     contentions        are   adequately      presented      in     the       materials

before    this    court      and   argument     would    not    aid    the        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).



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