                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4370


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

WINSTON MENDEZ-COLON,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:08-cr-00389-D-2)


Submitted:   February 14, 2011            Decided:   March 18, 2011


Before MOTZ, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard Croutharmel, Raleigh, North Carolina, for Appellant.
George E.B. Holding, United States Attorney, Jennifer P. May-
Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Winston Mendez-Colon and a co-defendant were charged

in   a   two-count         indictment      for    assaults        against      two    other

inmates that took place in the Federal Correctional Institution

in Butner, North Carolina.                Count One alleged that Mendez-Colon

and his co-defendant aided and abetted one another and knowingly

assaulted another person with a dangerous weapon, in violation

of 18 U.S.C. §§ 113(a)(3) and 2 (2006).                        Count Two alleged that

Mendez-Colon        and    his   co-defendant         knowingly    assaulted         another

person    with      a     dangerous   weapon,         in   violation     of    18     U.S.C.

§§ 113(a)(3)        and     2.      The    Government          dismissed      Count     One,

Mendez-Colon pleaded guilty to Count Two, and the district court

sentenced him to forty-one months’ imprisonment.                            Mendez-Colon

noted a timely appeal.

              On    appeal,      Mendez-Colon         asserts    three   claims:         (1)

that the indictment was fatally defective because it failed to

name the victim in either count; (2) that the district court

plainly and reversibly erred in finding Mendez-Colon competent

to proceed; and (3) that the district court lacked a factual

basis    to    accept        Mendez-Colon’s           guilty    plea.         Finding     no

reversible error, we affirm.

              Mendez-Colon argues that because neither count of the

indictment named a specific victim, “it is unclear as to which

count    is   for       which    victim   or     if    both     counts   are    for     both

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victims.”      He asserts that the ambiguity made it difficult for

him to mount an adequate defense and bars him from pleading

double jeopardy in the event of a future prosecution.

             We     review       a    challenge         to     the     sufficiency       of     an

indictment raised for the first time on appeal for plain error.

See   United        States    v.      Cotton,          535    U.S.     625,      631    (2002).

Accordingly, Mendez-Colon must identify an error that is plain

and   that    affects       his      substantial         rights.        United      States     v.

Olano, 507 U.S. 725, 732 (1993).                        We will not correct a plain

error unless “a miscarriage of justice would otherwise result,”

meaning      that    “the     error         seriously         affect[s]       the      fairness,

integrity, or public reputation of the judicial proceedings.”

Id. at 736 (internal quotation marks omitted).

             An     indictment        must    contain         elements      of   the    offense

charged, fairly inform the defendant of the charge, and enable

the defendant to plead double jeopardy as a defense to future

prosecutions        for    the       same    offense.           See     United      States      v.

Resendiz-Ponce,        549     U.S.     102,       108       (2007);    United      States     v.

Kingrea, 573 F.3d 186, 191 (4th Cir. 2009).                            In order to convict

Mendez-Colon,        the     Government        was      required       to   prove       “(1)   an

assault, (2) with a dangerous weapon, (3) with intent to do

bodily    harm.”          United      States      v.     Sturgis,      48   F.3d       784,    786

(4th Cir. 1995)           (concerning        18    U.S.C.        § 113(c)        (1994),       now

codified as § 113(a)(3) (2006)).

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              We conclude that the indictment alleged the elements

of the offense and, by identifying the date and location of the

assault, did so with sufficient specificity to put Mendez-Colon

on notice as to the conduct at issue.                         See United States v.

Loayza,       107      F.3d    257,       260-61       (4th Cir. 1997)            (finding

indictment,         despite   failure      to   name     the       victims,      described

fraudulent scheme with sufficient detail to allow defendant to

mount     a   defense).         Moreover,         we    believe       that       that    the

indictment’s        failure    to   name    the    victims         will    not    preclude

Mendez-Colon from raising double jeopardy as a defense to any

future    prosecutions        for   the    assaults.          In    raising      a   double

jeopardy defense, Mendez-Colon would be permitted to rely on the

record as a whole, not just on the indictment.                            See Russell v.

United States, 369 U.S. 749, 764 (1962); United States v. McHan,

966 F.2d 134, 138 (4th Cir. 1992).                     Here, the record makes it

clear the charged conduct related to the assaults of the two

inmates and specifies the count relating to each inmate.

              Mendez-Colon      next      argues       that    the    district          court

committed plain error in finding that Mendez-Colon was competent

to proceed with the Fed. R. Crim. P. 11 colloquy.                            He contends

that the district court rejected Mendez-Colon’s plea as to Count

One because it “believed he was incompetent to understand what

he was pleading to with regard to that count.”                        He reasons that

if he lacked capacity to plead to Count One, he lacked capacity

                                            4
to plead to Count Two as well.                   We disagree with Mendez-Colon’s

characterization of the district court’s decision.

              Before accepting a guilty plea, a district court “must

ensure     that     the    defendant    is   competent       to    enter    the    plea.”

United States v. Moussaoui, 591 F.3d 263, 291 (4th Cir. 2010)

(internal quotation marks omitted).                   A district court fulfills

this responsibility by determining whether the 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 factual understanding of the proceedings

against him.’”            Id. (quoting Dusky v. United States, 362 U.S.

402, 402 (1960) (per curiam)).               “A district court’s decisions on

competency . . . are reviewed for an abuse of discretion.”                          Id.

              Mendez-Colon           received       two      separate        competency

examinations in this proceeding, and both found him competent to

stand      trial.         Although    Mendez-Colon        points    to    the     district

court’s rejection of his plea to Count One and asserts that it

was   on    competence       grounds,    the      contention       is    belied    by   the

record.      It is clear that the district court declined to accept

Mendez-Colon’s            plea   to     Count       One     because        Mendez-Colon

unequivocally asserted his innocence of the assault charge in

that count.         We therefore hold that the district court did not

abuse its discretion in finding Mendez-Colon competent to enter

a guilty plea to Count Two.

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                 Finally, Mendez-Colon argues that the district court

lacked a factual basis to accept his guilty plea because he

offered a legal justification for his act.                             He asserts that he

raised self-defense and that the Government failed to rebut this

contention.

                 Because    Mendez-Colon       did       not    move     to    withdraw        his

guilty plea or otherwise object during the Rule 11 colloquy,

this    court      reviews      this   issue       for   plain    error.            See   United

States    v.      Vonn,    535    U.S.   55,       59    (2002);       United        States     v.

Massenburg, 564 F.3d 337, 342 (4th Cir. 2009).                                In determining

whether      a    factual    basis     exists       before       accepting          a   plea    of

guilty, a district court “possesses wide discretion, and it need

only    be       subjectively     satisfied         that       there    is     a    sufficient

factual basis for a conclusion that the defendant committed all

of the elements of the offense.”                         United States v. Ketchum,

550 F.3d 363, 366 (4th Cir. 2008).

                 We find that Mendez-Colon’s factual admission during

the plea hearing were fully consistent with the assault charged

in Count Two.          Moreover, based on his own statements, Mendez-

Colon    is      unable    to    raise   a     credible         claim    of        self-defense

because he is unable to show that he was under an unlawful and

present threat of death or serious injury, nor can he show that

he did not place himself in a situation where he would be forced



                                               6
to defend himself.      See United States v. Mooney, 497 F.3d 397,

406 (4th Cir. 2007).

           Accordingly, we affirm the district court’s judgment.

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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