                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4748


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHELLE HEBRON, a/k/a Michelle Hell, a/k/a BG,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(1:08−cr−00086−WDQ−16)


Submitted:   July 21, 2011                  Decided:    August 11, 2011


Before KING and    DAVIS,    Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Raymond J. Rigat, Washington, D.C., for Appellant. Rod J.
Rosenstein, United States Attorney, Christopher M. Mason,
Special Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Michelle           Hebron         appeals      her        conviction          and     360    month

sentence       on       one     count        of     conspiracy          to    participate          in     a

racketeering            enterprise           in    violation       of        18    U.S.C.     §    1962.

Hebron, who pled guilty to the offense, raises three claims of

error    on    appeal.          First,       she    alleges       that       the     district      court

abused its discretion when it failed to conduct a competency

hearing. Second, she claims that the district court abused its

discretion          when      it    accepted         her       guilty        plea.    Finally,          she

contends that the district court abused its discretion when it

denied     her       motion         to       withdraw      her     guilty           plea     prior       to

sentencing. Finding no merit in Hebron’s contentions, we affirm

for the reasons that follow.



                                    I. Competency Hearing

      Neither Hebron nor the government requested a competency

hearing       at    any    point        in    the    proceedings         before        the    district

court.    A    district         court        shall       sua    sponte       order     a    competency

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). This court has noted that “[i]n determining

                                                     2
whether there is reasonable cause to order a competency hearing,

a trial court must consider all evidence before it, including

evidence      of    irrational            behavior,         the     defendant’s          demeanor      at

trial,       and        medical           opinions          concerning            the     defendant’s

competence.” United States v. Mason, 52 F.3d 1286, 1290 (4th

Cir. 1995). We review a district court’s failure to sua sponte

order    a    competency            hearing          for    abuse      of    discretion.         United

States v. Banks, 482 F.3d 733, 742 (4th Cir. 2007).

     Here, Hebron is unable to point to examples of irrational

behavior,       a       demeanor          that       raised       questions         regarding         her

competence, medical opinions addressing her competence, or any

other    evidence         that      would        give      rise     to      reasonable        cause    to

believe      that       she     failed          to     comprehend           the    nature      of     the

proceedings         against         her    or    was       unable      to    assist      in    her    own

defense.      Because         Hebron       fails       to    show      reasonable         cause      that

would require the district court to order a competency hearing,

we refuse to find that the district court abused its discretion

in failing to do so.

     During         the    Rule       11    colloquy,            the     district        judge      asked

questions          to     determine             whether          Hebron       was        capable       of

understanding             the       proceedings             and        the        plea     agreement.

Specifically,           the     judge       ensured         that       Hebron      understood         the

English      language         and    understood            the    nature      of    the    charge      to

which     she       was       pleading          guilty       and       the     maximum        possible

                                                      3
penalties. After Hebron made the district judge aware of her

mental health history of schizophrenia and hallucinations, the

judge carefully ensured that Hebron was taking her medications

nightly as prescribed, and determined that she had taken her

prescribed      doses       the    night    previous.        The     judge    also       asked

questions of Hebron’s attorney regarding his interactions with

Hebron. Hebron’s attorney stated that he had met with Hebron

nine    times   and     had   at    least     five      phone      calls    with    her     and

assured the judge that Hebron had not said or done anything to

raise concerns about her ability to understand the proceedings.

        Hebron’s attorney noted that he had promised Hebron that he

would request a medical evaluation prior to sentencing. Although

Hebron’s    attorney        requested      that        the   judge    order     a       medical

evaluation prior to sentencing, her attorney did not raise any

questions      or   concerns       regarding      Hebron’s      competency          to    enter

into a plea agreement. While the decision by Hebron’s attorney

to request a medical evaluation prior to sentencing and not to

request a competency hearing despite his knowledge of her mental

health    history      is   not    dispositive,         it   does     provide       a    strong

indication      that    Hebron’s      attorney         did   not     have    doubts       about

Hebron’s competency.

       In Mason, we found that the district court had abused its

discretion in failing to order a competency hearing where the

court    had    before      it     evidence       of    Mason’s      pre-trial          suicide

                                              4
attempt,    initial    medical     reports      raising      concerns    about      the

defendant’s    competence,       and     affidavits        from    Mason’s    counsel

attesting to Mason’s doctors’ belief that Mason was incompetent.

52 F.3d at 1293. The court there found that the facts “clearly

gave rise to reasonable cause to believe the defendant may have

been incompetent” and remanded for a retrospective determination

of Mason’s competence. Id. Here, unlike in Mason, there is no

medical     evidence     of    incompetency         and    no     evidence    raising

questions    concerning       Hebron’s    ability     to    understand       what   was

happening.

     The     responses    of    Hebron        and   her    attorney     during      the

colloquy demonstrate that she was capable of consulting with her

attorney and understood the nature of the proceedings against

her. See United States v. General, 278 F.3d 389, 395-96 (4th

Cir. 2002) (“The test for determining competency is whether ‘[a

defendant] has sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding . . .

and whether he has a rational as well as a factual understanding

of   the     proceedings        against       him.’”)       (citations       omitted)

(alterations in original). Hebron fails to show that reasonable

cause existed to raise doubts about her competency to enter into

a guilty plea, and we reject her claim that the district court

abused its discretion by failing to order a competency hearing

prior to accepting her plea.

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                             II. Acceptance of Plea

        In addition to her procedural claim that the district court

abused     its     discretion       in    failing       to    conduct     a    competency

hearing, Hebron also raises a substantive competency claim. A

defendant raising a substantive claim that he was not competent

to   be    convicted        “must    demonstrate          his     incompetency       by     a

preponderance of the evidence.” Beck v. Angelone, 261 F.3d 377,

388 (4th Cir. 2001). The test for determining competency, as set

forth     by     the   Supreme      Court,         is   whether    a    defendant      “has

sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding—and whether he has a

rational as well as a factual understanding of the proceedings

against him.” Dusky v. United States, 362 U.S. 402, 402 (1960)

(internal quotation marks omitted). We review a district court’s

determination that a defendant is competent to enter a guilty

plea for abuse of discretion. United States v. Moussaoui, 591

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

        Hebron     argues     that       the       district     court     violated        her

substantive due process rights when it accepted her plea despite

having been made aware of her long-term mental illness, the fact

that she was taking several psychotropic medications at the time

of her plea, and the fact that her attorney had requested a

medical    evaluation       during       the   plea      colloquy.      This   court      has

explained, however, that “‘[n]ot every manifestation of mental

                                               6
illness demonstrates incompetence to stand trial; rather, the

evidence must indicate a present inability to assist counsel or

understand the charges.’” Burket v. Angelone, 208 F.3d 172, 192

(4th     Cir.    2000)    (quoting        United       States      ex   rel.    Foster       v.

DeRobertis, 741 F.2d 1007, 1012 (7th Cir. 1984)). In addition,

we have emphasized that “the fact that the petitioner has been

treated with anti-psychotic drugs does not per se render him

incompetent       to     stand    trial.”        Id.     Moreover,      the     fact    that

Hebron’s attorney requested a medical evaluation weighs against

Hebron’s claim here, as her attorney specifically requested an

evaluation       prior    to    sentencing,        a    strong      suggestion       that    he

intended to use the results to present mitigating circumstances

at sentencing and was not concerned with competency issues at

the time of the plea. Hebron’s reliance on her mental illness to

support her substantive competence claim fails to demonstrate an

abuse of discretion by the district court in accepting her plea,

particularly       in     light     of     the     extensive         inquiry     into       the

voluntariness and intelligence of her decision by the district

court.

       As   discussed      in     detail    supra,           the   district    court     here

conducted a thorough Rule 11 colloquy. There is nothing in the

record      to   reflect        that     Hebron        was     unable   to     communicate

effectively with her attorney or that she failed to understand

the    consequences        of     her      guilty        plea.      Among      the     issues

                                             7
established during the plea colloquy and while Hebron was under

oath included the following:

      (1)     That Hebron was satisfied with the representation of

      her counsel;

      (2)     That    Hebron     understood         the    elements         of   and   maximum

      penalties for the crime to which she was pleading guilty;

      (3)     That Hebron understood she had the right to plead not

      guilty,    but     that     by    pleading          guilty      she    was    foregoing

      certain rights, including the right to a jury trial;

      (4)     That Hebron’s decision to plead guilty was not the

      result of any threats or promises and was the result of her

      own free will and because she was guilty;

      (5)     That Hebron agreed that she had read and agreed to the

      terms     of     the     plea    agreement         and    the    stipulated        facts

      attached to it.

      Throughout        this     colloquy,         the      district        judge      had   an

opportunity to observe Hebron’s demeanor and tone in response to

these questions before deciding to accept her plea as knowing

and voluntary. In Beck, we refused to disturb the trial court’s

conclusion that the defendant was competent to plead guilty. 261

F.3d at 383, 392. In that case, the trial court relied upon an

extensive plea colloquy during which the defendant was “clear

and responsive” in expressing his understanding of the nature of

the   charges        against     him,    his       waiver      of   certain        rights    by

                                               8
entering a guilty plea, and the voluntariness of his decision.

Id. at 388. Moreover, Beck did “nothing to lead his counsel or

the state trial court to question his competency” and none of

the mental health experts that examined him “indicated that Beck

was incompetent to stand trial or assist in his defense.” Id. at

388-89. Similar facts obtain here, and the district court thus

acted    well     within      its    discretion        in   concluding     Hebron     was

competent to enter a guilty plea.



                  III. Denial of Motion to Withdraw Plea

       This court reviews a district court’s denial of a motion to

withdraw a plea for abuse of discretion. United States v. Moore,

931 F.2d 245, 248 (4th Cir. 1991). A defendant is permitted to

withdraw a guilty plea if she can “show a fair and just reason

for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). We

have    instructed       district     courts      to    consider    six    factors     in

determining whether a defendant has met this burden: (1) whether

the defendant has offered credible evidence that her plea was

not    knowing    or    not   voluntary;        (2)    whether   the     defendant    has

credibly asserted her legal innocence; (3) whether there has

been a delay between the entering of the plea and the filing of

the motion to withdraw the plea; (4) whether the defendant has

had    the   close      assistance     of   competent         counsel;    (5)   whether

withdrawal       will    cause      prejudice     to    the   government;       and   (6)

                                            9
whether    it     will    inconvenience          the     court      and    waste    judicial

resources. Moore, 931 F.2d at 248.

       Prior to sentencing, Hebron sent several letters to the

court requesting leave to withdraw her guilty plea. In her first

three letters, Hebron wrote that her decision to enter a guilty

plea    had     been     based    on    a   “misunderstanding,”             claiming        her

attorney had told her the sentencing range in the plea agreement

was    200-260    months.        Hebron     claimed      she     would     have    not     have

agreed to the plea if she had known her sentencing range was

300-360    months.       In   her      fourth      letter      to   the    court,     Hebron

acknowledged that the sentencing range she had agreed to was

300-360 months, but claimed she was not responsible for Moore’s

murder     and    requested        a   more        lenient     sentence.         During    her

sentencing       hearing,        Hebron’s     attorney         raised      the     issue     of

Hebron’s      desire     to   withdraw       her     plea,     though      he    stated     his

understanding that she wished to withdraw her motion to withdraw

her    plea.     Upon    questioning        by     the   district         judge,    however,

Hebron reiterated her wish to withdraw her plea and go to trial.

When the district court judge asked Hebron if she had anything

to add to the reasons provided in her letters to the court in

support of her motion, Hebron stated that she had “nothing else

to say besides what I wanted to in the letters.”

       The district court denied Hebron’s motion, setting out the

reasons for its denial in a Memorandum Opinion dated June 28,

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2010.    Applying     the     legal      standard         set    forth      in     Moore,    the

district court concluded that the third factor—the extent of

delay between the plea and the motion—weighed in Hebron’s favor,

but noted that “the other factors militate against permitting

withdrawal.”      With      respect       to       the    first       Moore      factor,     the

district court found that Hebron had not offered any evidence to

show that her plea was not knowing or voluntary, refusing to

credit     Hebron’s      claim        that     she       did    not    know        the    actual

sentencing range was 300-360 months in light of the text of the

agreement and the fact that both she and her attorney signed it.

The district court found that Hebron failed to credibly assert

her   innocence—the        second       Moore       factor—noting           that    her    final

letter    “neither    contradicts            the    stipulated        facts      establishing

her guilt nor offers evidence supporting her innocence.” The

district    court     also      weighed       the    fourth      Moore      factor       against

Hebron,    finding       that      Hebron      “had       the     close       assistance      of

competent counsel, who has shown exemplary patience and skill in

dealing    with   her”       and      noting       that    Hebron      herself       expressed

satisfaction        with        her      attorney’s             services         during      her

rearraignment.       Because       allowing         Hebron      to    withdraw       her    plea

would require her inclusion in yet another trial group from the

multi-defendant indictment, the district court also counted the

fifth and sixth Moore factors against Hebron, concluding that

granting    Hebron’s       motion      would        “prejudice        the   Government       and

                                               11
inconvenience     the     Court.”       The     district     court   concluded      that

Hebron had failed to meet her burden of demonstrating a “fair

and just reason for withdrawing her plea” and denied the motion.

      On appeal, Hebron contends that the district court abused

its discretion when it denied her motion to withdraw her guilty

plea because it improperly weighed the fourth, fifth, and sixth

Moore factors against her and because it failed to take into

account the effects of her mental illness on the intelligence

and voluntariness of her plea. Because Hebron’s arguments are

not supported by the facts in the record, she fails to show that

the district court abused its discretion in denying her motion.

      Hebron    argues        that    the   evidence      of   her   mental    illness

presented      before     the        district     court      suggested    a    “strong

possibility” that her plea was not knowing or voluntary. Br. of

Appellant 22-23. She contends that the nature of her illness,

the   medications       she    was    prescribed,      and     the   quality   of    her

letters to the court should have suggested to the district court

that she was not competent to enter a guilty plea or to be

sentenced. However, as discussed in more detail supra, Hebron’s

claims of incompetence are not borne out by the record, and the

district court conducted a thorough Rule 11 colloquy to ensure

Hebron understood the nature and consequences of her plea before

deciding to accept it. Moreover, even after Hebron underwent a

full medical evaluation prior to sentencing, her attorney did

                                            12
not raise questions regarding her competency, limiting his use

of the results to argue that Hebron’s history and mental illness

“does weigh on what type of sentence she should be receiving.”

Accordingly,       the   district    court   properly       weighed    the    first

factor against Hebron.

      Hebron suggests on appeal that her mental illness should

count in her favor with respect to the second Moore factor,

noting that the “history and extent of her illness also begs the

question whether Hebron was legally guilty of the crime charged

by reason of insanity.” Br. of Appellant 23. This contention is

without merit. Not only did Hebron’s trial counsel not raise any

concerns regarding Hebron’s competency before the trial court,

but, as the government points out, Hebron stipulated to facts

that suggest she was able “to appreciate the nature and quality

or the wrongfulness of [her] acts.” Br. of Appellee 37, n.10

(quoting      18   U.S.C.   §17     (codifying   requirements         of   insanity

defense)). The second Moore factor does not weigh in favor of

Hebron’s motion.

      Arguing that there was a “breakdown in communication” with

her attorney, Hebron also contends that she “may not have had

the   close    assistance    of     counsel.”    Br.   of    Appellant       23.   In

support, Hebron points to the fact that her attorney thought

Hebron intended to withdraw her motion to withdraw her plea at

her   sentencing     hearing,     Hebron’s   complaints       to   the     district

                                        13
court regarding the “misunderstanding” she had with her attorney

regarding the sentencing range in the plea agreement, and the

fact that her attorney failed to request a competency hearing

prior to Hebron’s entering into a plea agreement. However, the

record   also    includes       evidence       of     Hebron’s       cooperation         and

satisfaction     with     her     trial    counsel.         During        the    Rule    11

colloquy, Hebron expressed her satisfaction with her attorney’s

representation.    In     her    final     letter      to    the     district        court,

Hebron   recanted        her      statement          that      her        attorney       had

misrepresented     the    sentencing       range       in   the      plea       agreement.

Moreover,    during      the    sentencing          hearing,      Hebron’s        attorney

stated that her decision to attempt to withdraw her plea was

“different,” but denied that he was surprised by her choice. On

balance, it simply cannot be said that the district court abused

its discretion in weighing this factor against Hebron’s request

to withdraw her plea.

     Finally, Hebron argues that the district court improperly

weighed the fifth and sixth Moore factors against her because

there was a group of her co-defendants already scheduled to go

to trial in December 2010. This argument fails to appreciate the

need for the government to allocate additional resources to the

December trial if Hebron were to be included in the group of

defendants   and   the     need    for     the      trial    court        to    cope    with

additional     evidence    and     witnesses,         but    it      is    unclear      how

                                          14
strongly these factors weigh against Hebron. Nonetheless, taken

together, the Moore factors do not provide Hebron with a “fair

and   just”   reason    for    withdrawing    her   plea,    and   the   district

court did not abuse its discretion when it denied her motion to

withdraw her plea.



                                IV.   Conclusion

       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 the

court and argument would not aid the decisional process.



                                                                         AFFIRMED




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