      [NOT FOR PUBLICATION - NOT TO BE CITED AS PRECEDENT]

           United States Court of Appeals
                      For the First Circuit


No. 00-1809

                         UNITED STATES,

                            Appellee,

                                v.

               MALCOLM DEDRICK, a/k/a MARK WILSON,

                      Defendant, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

            [Hon. Nancy Gertner, U.S. District Judge]



                             Before

                     Torruella, Chief Judge,

                 Campbell, Senior Circuit Judge,

              and Schwarzer,* Senior District Judge.



     Jean M. Terranova, on brief for appellant.
     Patrick M. Hamilton, with whom Donald K. Stern, United States
Attorney, and Jennifer H. Zacks, were on brief, for appellee.



*   Of the Northern District of California, sitting by designation.
June 12, 2001




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          SCHWARZER, Senior District Judge.     Malcolm Dedrick appeals

the judgment of conviction and sentence, entered upon his plea of

guilty to two counts of distribution of crack cocaine in violation of

21 U.S.C. § 841(a).   He raises four issues: (1) that the court erred

in sentencing him under the career offender guideline, UNITED STATES

SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 4B1.1; (2) that his sentence

resulted from ineffective assistance of counsel; (3) that the court

erred in failing to hold a competency hearing before accepting his

plea; and (4) that counsel’s failure to secure a mental health

evaluation constituted ineffective assistance of counsel.

   APPLICATION OF THE CAREER OFFENDER GUIDELINE TO DEDRICK

          Dedrick pled guilty to two counts of the indictment,

charging him with distribution of crack cocaine on two occasions,

April 16 and April 30, 1997.    Because Dedrick had two prior state

felony convictions, the district court sentenced him as a career

offender under U.S.S.G. § 4B1.1.

          Dedrick’s principal argument is that the court erred in

treating the prior state offenses as predicates of his criminal

history, rather than as relevant conduct.     Had the court accepted his

Guideline application, he would have avoided application of U.S.S.G.

§ 4B1.1, which automatically placed him in criminal history category

VI instead of IV and increased his offense level.      His somewhat

tortured argument proceeds from U.S.S.G. § 4A1.2, cmt. n.1


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(“Definitions and Instructions for Computing Criminal History”),

which states that a “prior sentence” does not include a sentence “for

conduct that is part of the instant offense.”   To bring himself

within this provision, Dedrick points to the conspiracy charged in

the indictment, which he says was established by stipulation and,

under U.S.S.G. § 1B1.2(c) (“Applicable Guidelines”), must therefore

be counted as an offense of conviction.   As such, it would encompass

the drug offenses--the conduct on which the prior state convictions

were based--making them relevant conduct, rather than prior

convictions for purposes of U.S.S.G. § 4B1.1.

         Ingenious as it may be, the argument will not hold water.

To begin with, the conspiracy charge was dismissed by the government.

The straw at which Dedrick grasps is the parties’ stipulation in the

plea agreement that the quantity of drugs attributable to Dedrick was

between 50 and 150 grams.   But this amount, as noted in the district

court’s meticulous sentencing memorandum, is far in excess of the

amounts involved in the offenses to which he pled and for which he

was sentenced.   Even if the larger amounts in the plea agreement

could be said to cover other offense conduct, there is nothing in the

agreement or the sentencing proceedings to suggest that Dedrick was

treated by the government or the court as having participated in a

conspiracy, much less as having stipulated to one.   See, e.g., United

States v. Collar, 904 F.2d 441 (8th Cir. 1990) (holding that where


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defendant stipulated to elements of two robberies dismissed by the

government, these offense were properly included in base offense

level calculation).

         Once the conspiracy argument collapses, Dedrick’s attack

on the sentence fails.   The commentary in the Relevant Conduct

guideline, U.S.S.G. § 1B1.3, specifically provides that “offense

conduct associated with a sentence that was imposed prior to the acts

. . . constituting the instant federal offense (the offense of

conviction) is not considered as part of the same course of conduct

or common scheme or plan as the offense of conviction.”     This

guideline clearly precludes treatment of the prior state convictions

as relevant conduct in the instant case.

         Dedrick contends that to the extent the foregoing argument

fails, he was denied the effective assistance of counsel.     He argues

that counsel was ineffective in advising him to plead to the two

distribution counts and failing to ensure that the conspiracy charge

was included in the offense stipulation.   We ordinarily review

ineffective assistance claims in collateral proceedings under 28

U.S.C. § 2255, rather than on direct appeal.   See United States v.

Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).   We address the claim here,

however, because the record is complete and the facts are undisputed.

         Dedrick’s ineffective assistance claim is without merit.

The district judge addressed the very issue in her sentencing


                              -5-
memorandum and concluded that offenses which resulted in sentences

prior to the commission of the instant offenses could not be

considered related.    To the extent counsel advised Dedrick to enter

into the agreement to a much higher quantity of drugs than was

attributable to him under the offense of conviction, there was no

prejudice because the sentence was not based on the stipulated

quantity.    Nor has Dedrick shown that his sentence would have been

lower had he stipulated to a lesser quantity of drugs.    Without

demonstrating a reasonable probability that, but for counsel’s error,

the result of the proceedings would have been different, Dedrick’s

ineffective assistance claim fails.    See López-Nieves v. United

States, 917 F.2d 645, 648 (1st Cir. 1990).

             FAILURE TO ORDER A COMPETENCY EXAMINATION

            Under 18 U.S.C. § 4241(a) (“Determination of Mental

Competency to Stand Trial”), the district court must order a

competency hearing “if there is reasonable cause to believe that the

defendant may presently be suffering from a mental . . . 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.”    Because no motion was made by

Dedrick below, we review for plain error.    See United States v.

Girón-Reyes, 234 F.3d 78, 80 (1st Cir. 2000).




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         Dedrick contends that because the district court knew that

he had a “de facto” fifth-grade education and may be “borderline

retarded” and observed his confusion when asked whether he wished to

change his plea, failure to order a competency hearing was plain

error and violated Dedrick’s due process rights.    For the same

reasons, he argues that counsel rendered ineffective assistance by

failing to secure a mental health examination.

         We disagree.   The circumstances described led the district

judge to take pains to ensure Dedrick’s rights were protected.      The

judge inquired whether any collateral challenges to the prior

convictions were available to the defendant and counsel responded

that there were none that could be made.    Counsel stated that

although Dedrick suffered from some degree of limited intelligence,

in discussing the prior convictions, he had assured counsel that he

felt he had been advised of his rights and that the proceedings had

been proper.   When counsel advised the court that Dedrick may be

borderline retarded, the judge allowed counsel to consult with him.

Counsel then returned with Dedrick and, without further discussion,

the plea colloquy proceeded.   While at one point, Dedrick showed

confusion over whether he wished to change his plea, after conferring

with counsel, he continued with the colloquy and responded

appropriately to the court’s questions.    We are satisfied that the

district judge, after having been assured by Dedrick’s counsel that


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“I don’t think he is retarded to a degree that he does not understand

the proceedings here,” did not abuse her discretion in accepting the

plea as knowing and voluntary and not ordering a competency hearing.

            We recognize that a mentally retarded person may be

capable of understanding the nature and consequences of the

proceedings against him and yet be unable to assist properly in his

defense.     See United States v. Duhon, 104 F. Supp. 2d 663, 666, 671

(E.D. La. 2000).     There is no evidence that this is such a case.

Dedrick also fails to demonstrate that but for counsel’s failure to

secure a hearing, the course of the proceedings would have been

altered in his favor, e.g., that he would not have pled guilty.       See

Hernández-Hernández v. United States, 904 F.2d 758, 761 (1st Cir.

1990).     Accordingly, there is no basis for finding ineffective

assistance for counsel’s failure to move for a competency hearing.

            AFFIRMED.




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