                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2756
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
     v.                                 * District Court for the
                                        * Northern District of Iowa.
Miles Murphy,                           *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: May 13, 2009
                                Filed: July 17, 2009
                                  ___________

Before RILEY, SMITH, and COLLOTON, Circuit Judges.
                             ___________

RILEY, Circuit Judge.

       Miles Murphy (Murphy) pled guilty to possession of pseudoephedrine with
intent to manufacture methamphetamine, and possession of a firearm in furtherance of
a drug trafficking crime. The district court1 denied Murphy’s motion to withdraw his
guilty plea and sentenced Murphy to 300 months imprisonment. On appeal, Murphy
argues the district court abused its discretion by denying his motion to withdraw his


      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa, adopting the Report and Recommendation of the
Honorable John A. Jarvey, United States Magistrate Judge for the Northern District
of Iowa.
guilty plea because Murphy (1) had an ineffective attorney, (2) was incompetent at the
time of his plea and did not enter his plea knowingly and voluntarily, and (3) was not
legally guilty of possessing a firearm in furtherance of a drug trafficking crime under
18 U.S.C. § 924(c). We affirm.

I.    BACKGROUND
      On April 21, 2006, after receiving several complaints and tips related to alleged
drug activity, law enforcement went to Murphy’s residence. Two males answered the
door, and officers arrested one of them on outstanding warrants. Officers then
encountered Murphy’s fifteen-year-old son and another minor. Officers detected the
odor of marijuana on Murphy’s son. Murphy’s son admitted smoking marijuana and
granted consent to enter the son’s basement bedroom. Officers retrieved the marijuana
and arrested Murphy’s son and the other minor. Officers then cleared the house
looking for additional occupants. In Murphy’s seven-year-old son’s bedroom, officers
saw an open closet door and a step ladder leading to an attic. The officers detected a
chemical aroma near the attic. While checking the attic, one of the officers became
nauseous from the chemical fumes and was taken to a hospital for treatment.

        Officers seized methamphetamine manufacturing items from the attic. Officers
also seized a loaded .38 caliber Derringer pistol, digital scales, drug paraphernalia, and
pseudoephedrine pills from Murphy’s bedroom. In a vehicle registered to Murphy’s
girlfriend or spouse, officers found a .22 caliber revolver and numerous items used in
the manufacture of methamphetamine.               Officers seized 101.13 grams of
pseudoephedrine from Murphy’s residence.

       After officers took Murphy into custody and read Murphy his rights, Murphy
admitted he had been manufacturing methamphetamine for the last five years. Murphy
told officers he had traded used filters with methamphetamine residue for the .22
caliber revolver, and he traded one gram of methamphetamine for the .38 caliber pistol.
Murphy stated he carried the firearms because they came with the nature of the

                                           -2-
business. Murphy’s fifteen-year-old son reported Murphy sometimes carried a pistol
for protection.

       Murphy was charged in a five-count indictment. Murphy pled guilty to Count
1, possession of pseudoephedrine with intent to manufacture methamphetamine, in
violation of 21 U.S.C. § 841(c)(1) and (2), and Count 3, possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The
government dismissed the remaining counts.

        In his plea agreement, Murphy admitted he was a felon and that he “possessed
these firearms in furtherance of the drug manufacturing activity and used them during,
and in relation to, his drug trafficking activity by trading controlled substances for the
firearms.” Murphy also admitted he had been manufacturing methamphetamine for the
last five years, and he cooked the methamphetamine in the attic of his home.

      During Murphy’s plea hearing on January 11, 2007, the magistrate questioned
Murphy under oath regarding medications he was taking and his ability to understand
what was taking place:

      Judge: Have you ever suffered from or been treated for a mental illness?
      Murphy: I have anxiety and depression, Your Honor.
      Judge: Are you currently being treated for those?
      Murphy: I currently have no medication, no. I’m all right.
      Judge: Okay. Is there anything about those conditions that interferes with
      your ability to understand what you’re doing here today?
      Murphy: No, Your Honor.

      Murphy stated he was not under the influence of any drug, medication, or
alcohol, and he fully understood what he was doing at the hearing. The magistrate
found Murphy was competent to enter his plea, and Murphy’s plea was entered
voluntarily. The magistrate filed a Report and Recommendation (R & R) which


                                           -3-
recommended the district court accept Murphy’s guilty pleas. Murphy did not object
to the R & R. On January 26, 2007, the district court entered an order adopting the
magistrate’s R & R.

       On June 19, 2007, Murphy’s counsel requested Murphy be evaluated for mental
competency. Murphy’s motion was granted, and Murphy underwent a mental and
psychiatric evaluation. The report, dated November 23, 2007, concluded Murphy
“appeared to possess a reasonable factual and rational level of understanding regarding
his current legal case. He also appeared to possess the capacity to meaningfully
interact with counsel, provided he abstains from the use of alcohol, methamphetamine,
and remains medication compliant.” The report identified no impairment in Murphy’s
ability to assist his counsel, and the report also indicated “Murphy appeared to possess
a fundamentally accurate factual understanding of his current legal proceedings,”
including the criminal charges against him and the responsibilities of the judge,
prosecutor, and defense attorney.

        On January 30, 2008, Murphy filed a motion to withdraw his guilty pleas. The
district court held a hearing on the motion and called Murphy’s counsel to testify.
Murphy’s lawyer testified she thought Murphy was competent at the time of his guilty
pleas. During her time as a federal public defender, counsel had represented competent
and incompetent clients, and counsel recommends clients be evaluated when she has
concerns. Murphy’s attorney had no such concerns regarding Murphy’s competency
before his pleas. According to counsel, she first noticed Murphy seemed depressed
after the United States Probation Office issued a draft presentence investigation report
indicating Murphy was facing significantly more prison time than Murphy expected.

      Murphy’s lawyer testified that she and Murphy discussed before the plea hearing
the possible Fourth Amendment issues stemming from law enforcement’s search of
Murphy’s residence. Counsel and Murphy disagreed about whether to proceed with
a motion to suppress. Murphy’s lawyer researched the Fourth Amendment issues and

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located some cases, but regardless of what the cases said, Murphy decided he did not
want his son to testify.

      The district court denied Murphy’s motion to withdraw his guilty pleas and
sentenced Murphy to 240 months imprisonment on Count 1 and a consecutive 60
months imprisonment on Count 3. This appeal followed.

II.    DISCUSSION
       “This court reviews the denial of a motion to withdraw a guilty plea for abuse
of discretion.” United States v. Rollins, 552 F.3d 739, 741 (8th Cir. 2009) (citing
United States v. Maxwell, 498 F.3d 799, 801 (8th Cir. 2007)). A defendant may
withdraw a guilty plea before the court imposes sentence if “the defendant can show
a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B).
“While the ‘fair and just’ standard is a liberal one, we are mindful that ‘[t]he plea of
guilty is a solemn act not to be disregarded because of belated misgivings about the
wisdom of the same.’” United States v. Thompson, 906 F.2d 1292, 1298 (8th Cir.
1990) (quoting United States v. Woosley, 440 F.2d 1280, 1281 (8th Cir. 1971)). If the
district court determines the defendant has presented a fair and just reason to withdraw
his plea, the court may consider several other factors, such as, “whether the defendant
asserts his legal innocence of the charge, the length of time between the plea and the
motion to withdraw, and whether the government will be prejudiced by the
withdrawal.” United States v. Gray, 152 F.3d 816, 819 (8th Cir. 1998) (citation
omitted). “However, if a defendant does not present a fair and just reason for
withdrawal of a guilty plea no need exists to examine the other factors.” Id. (citing
United States v. Abdullah, 947 F.2d 306, 311 (8th Cir. 1991)).

       Murphy contends the district court abused its discretion by denying Murphy’s
motion to withdraw his pleas for three reasons: (1) his lawyer was ineffective; (2) as
a result of Murphy’s alleged mental illness and methamphetamine addiction, he was
incompetent to enter a guilty plea, and his pleas were unknowing and involuntary; and

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(3) pursuant to Watson v. United States, 552 U.S. 74, 128 S. Ct. 579 (2007), the court
was barred from finding Murphy guilty of possessing a firearm in furtherance of a drug
trafficking crime under 18 U.S.C. § 924(c). We address each of Murphy’s claims in
turn.

       A.     Legal Representation
       Murphy argues his attorney did not effectively represent him because counsel
failed to bring discovery documents to her meetings with Murphy and failed to file a
motion to suppress the evidence seized during law enforcement’s search of Murphy’s
residence. “Defense counsel’s performance can serve as the requisite ‘fair and just
reason’ for withdrawal [of a guilty plea] only if [a defendant] demonstrates both that
his attorney’s performance was deficient and that he was prejudiced by it.” United
States v. McMullen, 86 F.3d 135, 137 (8th Cir. 1996).

        Murphy waived the issue of counsel’s allegedly deficient failure to bring
discovery documents to her meetings with Murphy because Murphy failed to raise this
issue in his motion to withdraw his guilty plea. See United States v. Washington, 515
F.3d 861, 864 (8th Cir. 2008) (reasoning, claims not presented “to the district court in
the first instance by a motion to withdraw [a] guilty plea” are not “cognizable on direct
appeal” (citing United States v. Murphy, 899 F.2d 714, 716 (8th Cir. 1990))). Even if
this issue were cognizable on appeal, it is without merit. It is undisputed Murphy’s
lawyer had access to the complete discovery file and discussed with Murphy the
charges against him and the evidence in the case. Murphy fails to explain how his own
lack of access to any specific discovery documents affected his decision to plead guilty
or prejudiced him in any way. See Abdullah, 947 F.2d at 312 (where the defendant’s
attorney reviewed the government’s case file, defendant’s argument for withdrawal of
his guilty plea based on defendant’s own lack of access to the case file was “easily
dismissed”). The fact Murphy did not personally review the discovery file is not a fair
and just reason for withdrawal of Murphy’s guilty pleas.



                                          -6-
        Murphy’s attorney’s alleged failure to file a motion to suppress also does not
provide a fair and just reason for withdrawal of Murphy’s guilty pleas. It is undisputed
counsel and Murphy discussed the search of Murphy’s residence, counsel researched
the Fourth Amendment issues, and Murphy instructed his lawyer not to file a motion
to suppress because Murphy did not want his son to testify. Murphy failed to object
to his counsel’s performance at the plea hearing, despite knowing counsel had not filed
a motion to suppress. Murphy acknowledged under oath that he was fully satisfied
with his counsel’s representation. See United States v. Newson, 46 F.3d 730, 733 (8th
Cir. 1995) (“[Defendant]’s failure to assert any objections to his counsel’s performance
at the change-of-plea hearing, despite his knowledge” of the availability of a defense,
“‘refutes any claim of ineffective assistance of counsel as a basis for withdrawing his
plea.’” (quoting Abdullah, 947 F.2d at 312)). The fact Murphy now regrets his
decision not to file a motion to suppress does not constitute a fair and just reason for
withdrawal of Murphy’s guilty pleas.

       B.     Mental State and Methamphetamine Addiction
       Murphy asserts “his mind was unclear and his decision making capacity was
impaired” at the time of his guilty pleas because Murphy was (1) not taking medication
for a mental deficiency that required medication, and (2) suffering the long term effects
of his methamphetamine addiction. Murphy contends he was incompetent to plead
guilty and his guilty pleas were neither knowing nor voluntary. We disagree.

        “A defendant is competent if []he possesses a ‘sufficient present ability to
consult with h[is] lawyer with a reasonable degree of rational understanding’ and ‘has
a rational as well as factual understanding of the proceedings.’” United States v.
Martinez, 446 F.3d 878, 881 (8th Cir. 2006) (quoting Dusky v. United States, 362 U.S.
402, 402 (1960) (per curiam)). The district court’s determination of the defendant’s
competency may include numerous factors, such as “‘expert medical opinions and the
court’s observation of the defendant’s demeanor.’” Id. (quoting United States v.
Denton, 434 F.3d 1104, 1112 (8th Cir. 2006)). “The district court’s finding that a

                                          -7-
defendant is competent is reviewed for clear error.” Id. (citing United States v.
Robinson, 253 F.3d 1065, 1068 (8th Cir. 2001)).

       “Even if suffering from a disease, a defendant’s plea is valid if the record
demonstrates that he ‘understood the charges against him, was not dissatisfied with the
services rendered by his attorney, and entered his plea knowingly and voluntarily.’”
Rollins, 552 F.3d at 741-42 (quoting United States v. McNeely, 20 F.3d 886, 888 (8th
Cir. 1994) (per curiam)). “Whether [a] plea was knowing and voluntary is a mixed
question of fact and law that we review de novo.” Gray, 152 F.3d at 819 (citing Easter
v. Norris, 100 F.3d 523, 525 (8th Cir. 1996)).

       The district court did not err by determining Murphy was competent and his
pleas were entered knowingly and voluntarily. Murphy presented the district court
with no medical evidence to support his claim he was not taking prescription
medication, or that he required medication to be mentally competent at the time he pled
guilty.2 The mental and psychiatric report, prepared approximately ten months after
Murphy’s guilty pleas, does not describe Murphy’s mental condition at the time he
pled guilty. To the extent the report is probative of Murphy’s mental condition
generally, the report identified no impairment in Murphy’s ability to assist his counsel
and indicated, “Murphy appeared to possess a fundamentally accurate factual
understanding of his current legal proceedings,” including the criminal charges against
him and the responsibilities of the judge, prosecutor, and defense attorney. The report
concluded, Murphy “appeared to possess a reasonable factual and rational level of
understanding regarding his current legal case. He also appeared to possess the
capacity to meaningfully interact with counsel, provided he abstains from the use of


      2
        On appeal, Murphy has not even identified the mental illness he claims to be
suffering, much less provided documentation of any diagnosed condition or evidence
that such condition requires prescription medication. Because Murphy stated at the
plea hearing that he suffered from “anxiety and depression,” we will assume this is the
mental condition Murphy alleges rendered him incompetent to plead guilty.

                                          -8-
alcohol, methamphetamine, and remains medication compliant.”3 Nothing in the report
indicates Murphy was incompetent, or that his guilty pleas were unknowing or
involuntary.

       At the plea hearing, Murphy unequivocally stated (1) he was not on any
medication, (2) nothing about his anxiety and depression interfered with his ability to
understand the proceedings, (3) he was not under the influence of any drug or alcohol,
(4) he fully understood what he was doing at the plea hearing, and (5) he was fully
satisfied with his lawyer’s representation. Murphy’s statements strongly support the
district court’s finding Murphy was competent and his plea was entered knowingly and
voluntarily. Finally, none of the testimony at the hearing on the motion to withdraw
Murphy’s guilty pleas indicated Murphy was incompetent or that his pleas were
entered unknowingly or involuntarily. Because all available evidence suggested
Murphy was competent and his pleas were entered knowingly and voluntarily, the
district court did not abuse its discretion by determining Murphy’s alleged mental
condition and methamphetamine addiction did not constitute a “fair and just reason”
for withdrawing his guilty pleas.

      C.    Possessing a Firearm in Furtherance of a Drug Trafficking Crime
      Murphy contends, under Watson, the district court was barred from finding
Murphy guilty of possessing a firearm in furtherance of a drug trafficking crime under
18 U.S.C. § 924(c). In Watson, the Supreme Court held a person does not “use” a

      3
       Murphy insists the report’s statement that Murphy “appeared to possess the
capacity to meaningfully interact with counsel, provided he . . . remains medication
compliant” proves that, at the time of his guilty pleas, Murphy required medication
to be mentally competent. Even if the report described Murphy’s mental condition at
the time of the plea hearing, this particular statement is ambiguous at best. We agree
with the district court’s reasoning it is equally plausible the statement simply means
Murphy may now encounter mental difficulties if he discontinues a course of
medication he was prescribed after the plea hearing.


                                         -9-
firearm during and in relation to a drug trafficking crime within the meaning of 18
U.S.C. § 924(c) when he receives the firearm in trade for drugs. Watson, 552 U.S. at
__, 128 S. Ct. at 586.

       Section 924(c) contains two separate offenses: (1) using or carrying a firearm
during or in relation to a drug trafficking crime, and (2) possessing a firearm in
furtherance of a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A); United States
v. Gamboa, 439 F.3d 796, 810 (8th Cir. 2006). Watson addresses only the first
alternative. Murphy was charged with, and pled guilty to, both alternatives. The
government concedes, as it did before the district court, that an insufficient factual
basis existed to establish Murphy used a firearm during and in relation to a drug
trafficking crime. However, the government argues, there remained a substantial
evidentiary basis to conclude Murphy possessed a firearm in furtherance of a drug
trafficking crime.

        “To secure a conviction under § 924(c)(1)(A), the government must present
evidence from which a reasonable juror could find a ‘nexus’ between the defendant’s
possession of the charged firearm and the drug crime, such that this possession had the
effect of ‘furthering, advancing or helping forward’ the drug crime.” United States v.
Sanchez-Garcia, 461 F.3d 939, 946 (8th Cir. 2006) (quoting United States v. Hamilton,
332 F.3d 1144, 1149-50 (8th Cir. 2003)). The fact “the defendant simultaneously
possessed drugs and a firearm, standing alone,” is insufficient to sustain a conviction.
Id. (citing United States v. Spencer, 439 F.3d 905, 914 (8th Cir. 2006)) “Instead, the
jury must be able to infer that the defendant’s possession of the firearm facilitated the
drug crime, through evidence that the firearm was used for protection, was kept near
the drugs, or was in close proximity to the defendant during drug transactions.” Id. at
946-47 (citing United States v. Thorpe, 447 F.3d 565, 568 (8th Cir. 2006); Spencer,
439 F.3d at 914-15).




                                          -10-
        In his plea agreement, Murphy admitted he “possessed these firearms in
furtherance of the drug manufacturing activity[.]” The evidence amply supports
Murphy’s admission. The .38 caliber Derringer was found in Murphy’s bedroom along
with digital scales, drug paraphernalia, and pseudoephedrine pills.4 Following his
arrest, Murphy stated he carried the firearms because of the nature of the business, and
Murphy’s fifteen-year-old son reported Murphy sometimes carried a pistol for
protection. Despite the government’s concession there was an insufficient evidentiary
basis to convict Murphy of the use of a firearm during and in relation to a drug
trafficking crime, an ample evidentiary basis did exist to convict Murphy of possessing
a firearm in furtherance of a drug trafficking crime. The district court did not abuse
its discretion by determining the Watson decision did not provide a fair and just reason
for withdrawal of Murphy’s guilty pleas.5

       Finally, Murphy argues the district court lacked jurisdiction to sentence Murphy
for the § 924(c)(1)(A) violation because Watson negates Murphy’s guilt. “[A] valid
guilty plea forecloses an attack on a conviction unless ‘on the face of the record the
court had no power to enter the conviction or impose the sentence.’” Walker v. United
States, 115 F.3d 603, 604 (8th Cir. 1997) (quoting United States v. Vaughan, 13 F.3d
1186, 1188 (8th Cir. 1994)). Watson does not negate Murphy’s guilt or strip the
district court of jurisdiction to sentence Murphy. Murphy presents no additional basis

      4
        Murphy admitted possessing both the .38 caliber pistol and the .22 caliber
revolver in furtherance of a drug trafficking crime. However, the indictment lists only
the .38 caliber pistol as the basis for the § 924(c) charge.
      5
        Even if Murphy had been charged only with using a firearm during and in
relation to a drug trafficking crime, Watson does not provide a basis for invalidating
Murphy’s guilty pleas because Watson was decided after Murphy pled guilty. See
Brady v. United States, 397 U.S. 742, 757 (1970) (explaining, “a voluntary plea of
guilty intelligently made in the light of the then applicable law does not become
vulnerable because later judicial decisions indicate that the plea rested on a faulty
premise”).


                                         -11-
for concluding the district court lacked jurisdiction to impose the sentence, and we see
none.

III.   CONCLUSION
       We affirm the judgment and sentence of the district court.
                       ______________________________




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