                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a0799n.06
                                                                                        FILED
                                          No. 11-4007
                                                                                    Jul 24, 2012
                          UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )    ON APPEAL FROM THE UNITED
v.                                                      )    STATES DISTRICT COURT FOR
                                                        )    THE NORTHERN DISTRICT OF
DANTE WINNICK,                                          )    OHIO
                                                        )
       Defendant-Appellant.                             )
                                                        )




       Before: ROGERS and KETHLEDGE, Circuit Judges, MARBLEY, District Judge.*

       KETHLEDGE, Circuit Judge. Dante Winnick pled guilty to one count of being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to

53 months’ imprisonment, followed by three years of supervised release, and a $100 special

assessment. Winnick appeals, arguing that his plea agreement is invalid because it was not made

knowingly, voluntarily, and intelligently. Alternatively, he argues that the agreement is invalid

because it conferred no benefit upon him. We affirm.

                                                I.

       On January 21, 2011, police officers found Winnick in possession of a loaded .380 caliber

pistol. Winnick, who had previously been convicted of multiple felony offenses, was charged with

       *
        The Honorable Algenon L. Marbley, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 11-4007
United States v. Winnick

being a felon in possession of a firearm. On April 17, 2011, Winnick signed a plea agreement and

pled guilty to the charge. In the agreement, the government promised to recommend a three-level

reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. Winnick waived his right to

appeal or challenge any within-Guidelines sentence. Both parties agreed not to seek a sentence

outside the advisory range. The agreement also stipulated that Winnick’s base-offense level was 24.

       During the plea colloquy, the district court asked Winnick whether he was under the

influence of any drugs or alcohol. Winnick answered that he had taken his “psych meds” the night

before. The district court responded, “[m]ay I assume, sir, that those medications help you

understand the proceedings?” Winnick answered, “Yes, ma’am.” The district court then asked

defense counsel whether he thought Winnick understood what was happening during the plea

colloquy. Defense counsel said yes. Winnick said later in the colloquy that he understood

everything in the plea agreement. He also told the district court, however, that he had graduated high

school and just gotten off probation—assertions that were later contradicted by the presentence

investigation report (“PSR”). The report also indicated a history of mental and emotional health

problems.

       The district court accepted the PSR’s suggested base-offense level of 20 and sentenced

Winnick to a 53-month term of imprisonment, followed by three years of supervised release, and a

$100 assessment. The term fell within the Guidelines range of 46 to 57 months. After the district

court denied his request to self-report at the sentencing hearing, Winnick questioned why he had not

received a lower sentence due to his mental-health problems. The district court explained that it had

considered these problems but that they did not warrant a departure.

                                                 -2-
No. 11-4007
United States v. Winnick

                                                  II.

        Winnick first argues that his plea is invalid because it was not entered into “knowingly,

voluntarily, and intelligently.” United States v. Gardner, 417 F.3d 541, 544 (6th Cir. 2005) (internal

citation omitted). Rule 11 of the Federal Rules of Criminal Procedure “requires that a district court

verify that the defendant's plea is voluntary and that the defendant understands his or her applicable

constitutional rights, the nature of the crime charged, the consequences of the guilty plea, and the

factual basis for concluding that the defendant committed the crime charged.” United States v.

Webb, 403 F.3d 373, 378–79 (6th Cir. 2005). A defendant may challenge the district court’s failure

to comply with Rule 11 even if the plea agreement in question allegedly waives the defendant’s right

to appeal his sentence. See id. at 378 n.1. But when a defendant waits until appeal to raise such a

challenge—which is what Winnick has done here—we review only for plain error. See Gardner,

417 F.3d at 543.

                                                  A.

        Winnick contends that the district court did not sufficiently inquire into the effects of the

medication Winnick had taken the night before his plea colloquy. Once the district court learns that

a defendant has recently ingested a substance capable of impairing his ability to knowingly and

voluntarily plead, it must make an additional inquiry regarding the defendant’s competence. See

United States v. Parra-Ibanez, 936 F.2d 588, 596 (1st Cir. 1991); United States v. Cole, 813 F.2d

43, 46 (3d Cir. 1987). Although the “better practice” is for the district court to ask what the drug is,

how much of it has been taken, and its purpose and effects, the “critical question” is “whether the



                                                  -3-
No. 11-4007
United States v. Winnick

drugs—if they have the capacity to impair the defendant’s ability to plead—have in fact done so on

this occasion.” United States v. Savinon-Acosta, 232 F.3d 265, 268 (1st Cir. 2000).

       In support of his argument that the district court’s inquiry into the effects of his “psych meds”

was inadequate, Winnick relies on Cole and Parra-Ibanez. In Cole, upon learning that the defendant

had ingested drugs the night before the plea colloquy, the district court failed to ask anything more

about the drugs. 813 F.2d at 45. In fact, the record was unclear whether the district court noticed

the defendant’s admission of drug use at all. Id. at 46. In Parra-Ibanez, after learning that the

defendant had taken medication less than 24 hours before the plea colloquy, the court merely asked

what medication the defendant was taking and whether the medication helped the defendant control

his nerves. 936 F.2d at 591. Though the district court later inquired into the defendant’s general

ability to understand the proceedings, it never asked about the specific impact of the medication on

defendant’s competence. Id. at 592. In concluding that such an inquiry was insufficient, the First

Circuit explained that the district court’s previous knowledge of the defendant’s history of drug use,

depression, and attempted suicide, obtained through a competency hearing only a week before the

plea colloquy, “enhanced” the obligation of further inquiry. Id. at 596 n.16.

       The district court made a more thorough inquiry here. Specifically, the court did ask the

“critical question” whether “those medications help you understand the proceedings.” In United

States v. Morrisette, the First Circuit held that asking the defendant whether recently-ingested

medication affected his ability to understand the proceeding—nearly the identical question asked by

the district court here—was sufficient to establish the voluntary and knowing nature of the

defendant’s guilty plea. 429 F.3d 318, 322 (1st Cir. 2005). Moreover, unlike in Parra-Ibanez, there

                                                 -4-
No. 11-4007
United States v. Winnick

is no indication here that the district court had any knowledge of the defendant’s history of mental

illness at the time of the plea colloquy. Thus, the “enhanced” obligation of further inquiry required

in Parra-Ibanez was not required here. See id.

       A defendant’s behavior during a plea colloquy may also confirm or undermine his assurances

of competency. See Savinon-Acosta, 232 F.3d at 269 (internal citation omitted). Winnick argues

that his false statements regarding whether he graduated high school and whether he was still on

probation should have alerted the district court that he was incompetent to plead guilty. But nothing

in the record indicates that these answers were the result of incompetency, as opposed to misstating

the truth. Moreover, Winnick’s behavior throughout the plea colloquy, such as when he cited the

district court’s ability to depart from the Guidelines range, reveals his ability to comprehend the

proceedings. Thus, the district court’s inquiry, reinforced by Winnick’s behavior throughout the

colloquy, demonstrates that the district court did not err in its conclusion that Winnick entered his

guilty plea knowingly and voluntarily.

                                                 B.

       Winnick also argues that his plea was not made knowingly and voluntarily because he did

not understand the consequences of his plea agreement. He first contends that, because the base-

offense level stipulated in the plea agreement was different from the base-offense level determined

by the PSR and accepted by the district court, he could not have understood the consequences of the

agreement. But when a plea agreement contemplates a higher offense level than actually applied,

as was the case here, the plea is valid so long as the defendant has been informed of the statutory

maximum sentence. See United States v. Parrella, 448 F. App’x 591, 592 (6th Cir. 2012)

                                                 -5-
No. 11-4007
United States v. Winnick

(unpublished). Winnick was informed of the ten-year statutory maximum here, and thus the later

downward adjustment of the base-offense level is irrelevant.

       Winnick further contends that he misunderstood the consequences of his plea because he

erroneously believed that he would receive a downward departure for his mental health. During the

sentencing hearing, however, Winnick conceded that he had reviewed the PSR with his attorney and

that he had no objections to the report, whose calculation did not include any downward departure.

Thus, Winnick failed to establish that he misunderstood the consequences of his plea agreement.

                                                 C.

       Finally, Winnick argues that his plea agreement is invalid because it conferred no benefit

upon him. The existence of a valid plea agreement is a question of fact, and we review for clear

error. See United States v. Quesada, 607 F.3d 1128, 1131 (6th Cir. 2010). A plea agreement must

confer some benefit upon the defendant. See United States v. Randolph, 230 F.3d 243, 249 (6th Cir.

2000). The agreement is valid even if this benefit is minimal. See, e.g., United States v. Brunetti,

376 F.3d 93, 96 (2d Cir. 2004) (enforcing a plea agreement made in exchange for a mere chance at

a reduced sentence); United States v. Wesley, 13 F. App’x 257, 260 (6th Cir. 2001) (per curiam)

(holding that the government’s promise to recommend a sentence at the lower end of and a fine

within the Guidelines range and to not oppose a three-level reduction for acceptance of responsibility

was sufficient consideration for a plea agreement).

       Winnick benefitted from the plea agreement here. In exchange for the agreement, the

government promised to recommend a three-level reduction for acceptance of responsibility. This

full three-level reduction may only be awarded upon government motion. See United States v.

                                                 -6-
No. 11-4007
United States v. Winnick

Smith, 429 F.3d 620, 627 (6th Cir. 2005). The guarantee of such a motion conferred a benefit on

Winnick. The same is true of the government’s agreement not to request a sentence above the

Guidelines range.

       The district court’s judgment is affirmed.




                                               -7-
