                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4571



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.


SHIRELLE DENISE LOCKE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00036)


Submitted:    February 29, 2008             Decided:   March 14, 2008


Before WILKINSON and MOTZ, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Tolly A. Kennon, III, KENNON & ASSOCIATES, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Pursuant to a plea agreement, Shirelle Denise Locke pled

guilty to one count of using and carrying a firearm during and in

relation to a drug trafficking crime, in violation of 18 U.S.C.A.

§ 924(c)(1) (West 2000 & Supp. 2007). The district court sentenced

Locke to sixty months in prison.         Locke timely appeals.

           A federal grand jury returned a three-count indictment

against   Locke,   charging     her    with    possession   with    intent   to

distribute marijuana, in violation of 21 U.S.C.A. § 841(a)(1), (b)

(West 1999 & Supp. 2007), using and carrying a firearm during and

in relation to a drug trafficking crime, in violation of 18

U.S.C.A. § 924(c)(1), and possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g) (2000).             The magistrate

judge granted Locke’s motion for a psychiatric or psychological

evaluation and, over the course of her forty-five day stay at the

Federal Detention Center in Miami, Florida (“FDC Miami”), Locke was

evaluated by forensic psychologist, Manuel E. Gutierrez, Ph.D.

           After reviewing Locke’s medical and criminal records,

observing her in the prison environment, interviewing her, and

subjecting her to several psychological tests, Gutierrez concluded

that Locke suffered from some mental disorders, but that she was

malingering    with   respect     to     her    psychiatric   symptoms       and

recommended a finding of competency to stand trial.                Following a

competency hearing, the magistrate judge found Locke competent to

stand trial.   However, at a subsequent hearing conducted pursuant

to Rule 11 of the Federal Rules of Criminal Procedure, where Locke


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had intended to enter a straight-up guilty plea to all three counts

with which she was charged, Locke expressed confusion about the day

and month and stated that she thought she was in court for a jury

trial.     The magistrate judge terminated the hearing.                       Through

counsel, Locke requested a new mental competency evaluation from a

psychologist not associated with Dr. Gutierrez.                         Instead, the

district court ordered that Dr. Gutierrez perform a reevaluation,

noting that he wanted the psychologist to reassess his conclusions

in light of Locke’s behavior at the Rule 11 hearing.

            Locke returned to FDC Miami where she stayed for twenty-

two days, and Dr. Gutierrez reevaluated her to determine if she was

still malingering.           He reviewed the audiotape of the Rule 11

hearing,    additional       medical    records    that    had    been    previously

unavailable, and conducted psychological testing with specific

indices for malingering.         Based on this information, Dr. Gutierrez

concluded once more that Locke was malingering and was competent to

stand trial.

            Locke was also examined by psychologist William M. Tyson,

Ph.D., who reviewed Locke’s medical records, the data and reports

generated by Dr. Gutierrez, and, on a single day, conducted his own

psychological      tests.       Dr.     Tyson   disagreed        with    Gutierrez’s

conclusion    that    Locke    was     malingering    and   found       that,   while

competent, she was likely to quickly become incompetent during

legal proceedings.       After another competency hearing, where Drs.

Gutierrez    and     Tyson    both     testified     and    Locke       was   briefly

questioned, the court found Locke competent to stand trial.                       She


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then entered a plea agreement and pled guilty to the § 924(c)(1)

offense.

              Locke first contends on appeal that the district court

erred by finding her competent to stand trial.                       In making a

competency determination, the district court must decide whether

the defendant has “‘sufficient present ability to consult with

h[er] lawyer with a reasonable degree of rational understanding

.   .   .   and   whether   [s]he   has   a   rational   as   well    as   factual

understanding of the proceedings against h[er].’” United States v.

Robinson, 404 F.3d 850, 856 (4th Cir. 2005) (quoting Dusky v.

United States, 362 U.S. 402 (1960)).           A court must find a defendant

incompetent if it determines, “by a preponderance of the evidence

that the defendant is presently suffering from a mental disease or

defect rendering h[er] mentally incompetent to the extent that

[s]he is unable to understand the nature and consequences of the

proceedings against h[er] or to assist properly in h[er] defense.”

18 U.S.C. § 4241(d) (2000). Indicia of competence can include a

defendant’s behavior, her demeanor at trial, and any medical
opinion on competence.        United States v. Mason, 52 F.3d 1286, 1290
(4th Cir. 1995).       The competency standard for pleading guilty is

identical to that for standing trial.            Godinez v. Moran, 509 U.S.

389, 391 (1993).      This court reviews a district court’s competency

determination for clear error.            United States v. Cox, 964 F.2d

1431, 1433 (4th Cir. 1992).

              Here, the court considered the evaluations and testimony

of two psychologists:         Dr. Gutierrez, who diagnosed Locke with


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mental disorders but found that she was competent and malingering

psychiatric symptoms, and Dr. Tyson, who found Locke competent but

likely to quickly become incompetent during legal proceedings. Dr.

Gutierrez’s conclusion that Locke was malingering was based on two

multi-week evaluations of Locke that entailed numerous tests,

including several that specifically measured malingering.               Dr.

Tyson evaluated Locke for only one day and the psychological

assessment he conducted did not incorporate any tests that included

specific indices for malingering.

            Dr. Tyson reviewed the data considered by Dr. Gutierrez,

as well as the tests conducted and the reports generated by

Gutierrez upon which he based his determination that Locke was

competent.    Tyson questioned the validity of Gutierrez’s diagnosis

of malingering because Locke was prescribed several medications for

mental disorders while under Gutierrez’s care and the experts

agreed she suffered from mental disorders.          However, neither the

fact that an individual has mental disorders nor that she is

prescribed    psychiatric      medications     requires   a   finding   of

incompetency.   See   Burket v. Angelone, 208 F.3d 172, 192 (4th Cir.

2000) (“Not every manifestation of mental illness demonstrates

incompetence to stand trial; rather, the evidence must indicate a

present inability to assist counsel or understand the charges.”).

We also note that Locke’s below average intelligence, history of

violent behavior, and her bizarre conduct at the first Rule 11

hearing did not mean that she was incompetent to stand trial.           Id.

at   192   (“[N]either   low   intelligence,    mental    deficiency,   nor


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bizarre, volatile, and irrational behavior can be equated with

mental incompetence to stand trial.”).

          We find that the district court did not clearly err in

choosing to credit Dr. Gutierrez’s findings over those of Dr. Tyson

and concluding that Locke was competent to stand trial.         In

addition, we note that the district court’s decision to send Locke

back to Gutierrez in order to have him reassess his initial

findings in light of Locke’s behavior at the first Rule 11 hearing

and the magistrate judge’s observation of her at that hearing, was

a reasoned decision and did not amount to an abuse of discretion.

Cf. Mason, 52 F.3d at 1289 (applying abuse of discretion standard

to district court’s decision whether to hold competency hearing);

United States v. West, 877 F.2d 281, 285 n.1 (4th Cir. 1989)

(same).

          Accordingly, we affirm Locke’s conviction.   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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