                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4318


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RASHADI ANDRE WEARING,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.      Norman K. Moon,
Senior District Judge. (3:04-cr-00092-nkm-bwc-8)


Submitted:   September 2, 2011           Decided:   September 19, 2011


Before MOTZ, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Willis J. Spaulding, Charlottesville, Virginia, for Appellant.
Timothy J. Heaphy, United States Attorney, Nancy S. Healey,
Assistant United States Attorney, Charlottesville, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Rashadi    Andre     Wearing      appeals     the   district   court’s

amended judgment entered after this court remanded the action

for     the    purpose        of   having       the    district     court    make     a

retrospective determination regarding Wearing’s competency when

he pled guilty.         Wearing claims the district court erred finding

that he failed to show he was not competent when he pled guilty.

In addition, he contends that at sentencing, the court did not

believe it had the authority to depart downward and that his

counsel was ineffective.           We affirm.

              Despite Wearing’s claim that de novo review is proper,

this court reviews a district court’s competency determination

for clear error and for abuse of discretion.                       United States v.

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

Robinson, 404 F.3d 850, 856 (4th Cir. 2005); United States v.

Cox, 964 F.2d 1431, 1433 (4th Cir. 1992).                    A district court must

determine if “[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.”                      Dusky v. United

States, 362 U.S. 402 (1960) (internal quotation marks omitted).

The defendant shall be considered incompetent if the district

court    finds,   “by     a    preponderance          of   the   evidence   that    the



                                            2
defendant is presently 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(d) (2006).

                 “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.”                   Burket v. Angelone, 208 F.3d 172, 192

(4th Cir. 2000).                 Similarly, “neither low intelligence, mental

deficiency, nor bizarre, volatile, and irrational behavior can

be equated with mental incompetence to stand trial.”                                  Id.        In

this       instance,        Wearing     had    the    burden      of    establishing            his

incompetence.               United    States    v.   Robinson,         404    F.3d    at       856.

There       is        no    merit     to     Wearing’s      claim       that       under        the

circumstances,             the   Government     should      have     had     the    burden       of

establishing that he was competent.

                 We     conclude      that    the    record      clearly       supports         the

finding that Wearing was not under the influence of prescribed

medications for bipolar disorder during the time period when he

       *
       We conclude that Wearing’s claim that the district court
should have been governed by our holding in United States v.
Damon, 191 F.3d 561 (4th Cir. 1999) is without merit as that
case is clearly distinguishable.



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pled guilty.   At the Rule 11 hearing, Wearing, under oath, told

the court he was not taking any prescribed medications and that

he was not under the care of a physician or a psychiatrist.

Furthermore, Wearing’s medical records support the finding that

Wearing had not taken his prescribed medications prior to or on

the day he pled guilty.            We also conclude that there was no

error in the district court’s finding that Wearing failed to

show he was not competent when he pled guilty.

          We   are   without       jurisdiction     to    review   the   district

court’s finding that the evidence did not support a downward

departure.     Our   review    of    the   record    shows     that   the   court

understood its authority to depart and chose not to.                        United

States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990).

          As a general rule, claims of ineffective assistance of

counsel should be raised in a 28 U.S.C.A. § 2255 (West Supp.

2011) motion rather than on direct appeal unless the appellate

record conclusively demonstrates ineffective assistance.                    United

States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).                  The record

currently before the court does not conclusively establish that

Wearing’s trial counsel was ineffective at sentencing.

          Accordingly,        we    affirm   the         amended   judgment    of

conviction.    We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials



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before   the   court   and   argument   would   not   aid   the   decisional

process.



                                                                    AFFIRMED




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