                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-5021



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

           versus


LOUIS MCDADE,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:04-cr-00252-F-ALL)


Argued:   December 7, 2007                 Decided:   January 30, 2008


Before MICHAEL and TRAXLER, Circuit Judges, and James P. JONES,
Chief United States District Judge for the Western District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Joseph Lanny Ross, II, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Anne Margaret
Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

           Louis McDade appeals from his conviction, which is based

on a guilty plea, on one count of being a felon in possession of a

firearm.   McDade contends that the district erred by finding that

his plea was entered knowingly and by refusing to reopen its

determination that he was competent to stand trial.                Finding no

error, we affirm.



                                      I.

           In August 2004 a federal grand jury indicted McDade on a

single count of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1).          A year later, in August 2005,

the grand jury issued a superceding indictment charging two drug

offenses in addition to the original § 922(g)(1) offense.

           McDade’s counsel moved (successfully) for a hearing under

18 U.S.C. § 4241 to determine whether McDade was competent to stand

trial.   At the hearing the district court heard testimony from two

expert witnesses.      McDade’s expert, Dr. Claudia Coleman, testified

that McDade “function[ed] in the intellectual range of mild mental

retardation,” J.A. 129, and was not competent to stand trial.             She

based    her   opinion    on   an    interview    with    McDade    and   the

administration    of     several    tests,    including   a   comprehensive

intelligence test known as the WAIS-III.         The government’s expert,

Dr. Tanya Cunic, testified that McDade was competent to stand trial


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and that he operated at an intellectual level that was below

average but above the level of mental retardation. Her opinion was

based on her interviews and observations of McDade at FCI-Butner,

where he was being detained, as well as her administration of an

intelligence test known as the TONI-II.                    Dr. Cunic administered

this test because she believed the results of the WAIS-III might be

negatively       skewed,    primarily      because    of    McDade’s   poor   verbal

skills. After hearing the testimony, the district court found that

McDade was competent to stand trial based on its determination that

Dr. Cunic’s opinion was more reliable and more persuasive than Dr.

Coleman’s.

            McDade       subsequently      reached     an    agreement    with   the

government to plead guilty to the § 922(g)(1) count while reserving

the right to appeal on the question of his competency.                        McDade

later    moved    for    the    district    court    to    reopen   the   competency

hearing,    but    the     court     refused.       Before   accepting     the   plea

agreement, the district court held a hearing, as required by Rule

11 of the Federal Rules of Criminal Procedure, to determine whether

McDade    had    entered       the    agreement   knowingly     and    voluntarily.

Although    McDade      had    some    obvious    difficulties      processing   the

information conveyed to him by the court during the Rule 11

hearing, the court ultimately determined that the plea was knowing

and voluntary.




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           On appeal McDade raises two issues.            First, he argues

that the district court erred in finding that his plea agreement

was entered knowingly.      Second, he argues that the district court

abused   its   discretion   by   denying   his   motion    to    reopen   the

competency determination.



                                   II.

           The first issue is whether the district court erred in

finding that McDade’s plea was entered knowingly.               We review de

novo the validity of a guilty plea.         United States v. Goins, 51

F.3d 400, 402 (4th Cir. 1995). Nevertheless, we have observed that

“findings [of fact] by a sentencing court in accepting a plea,”

such as the court’s finding that a defendant entered his plea

knowingly, “constitute a formidable barrier to attacking the plea.”

United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992)

(internal quotation marks omitted).

           McDade has not made a sufficient showing to set aside the

district court’s finding that his plea was entered knowingly.

McDade relies heavily on the court’s purported failure to answer

questions he raised during the hearing. Specifically, he points to

an exchange in which the district court stated that, if the case

went to trial, “the government would be required to prove [his

guilt] by competent evidence and beyond a reasonable doubt,” and

McDade responded by stating that he        “didn’t understand that last


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part.”      J.A. 251.    Although McDade argues that the court failed to

adequately answer his question, the record shows otherwise.                            The

court responded by repeating the standard, listing the particular

facts the government would need to prove, and allowing McDade to

consult with his attorney. After this exchange, McDade stated that

he understood and did not ask any follow-up questions.

              McDade also argues that the transcript of the Rule 11

proceeding demonstrates that he did not understand the proceedings

or the nature of the trial rights he was waiving by pleading

guilty.     We recognize -- as we must after reading the transcript --

that    McDade    did     have       significant         difficulty       processing   the

information the district court was required to convey during the

hearing.         But     the        district       court       handled    the    situation

appropriately; it did not prod McDade to give affirmative answers,

and    it   allowed     McDade’s       counsel      to     assist    in   explaining   the

proceedings in a manner that McDade could understand.

              Moreover,        as     the   government          points    out,   McDade’s

cognitive difficulties at the plea hearing were consistent with Dr.

Cunic’s testimony at the competency hearing.                        Dr. Cunic testified

that McDade sometimes had difficulty understanding her questions.

But when she slowed down, explained things in a simpler way, and

allowed      McDade     to      ask     questions,          his     responsiveness     and

comprehension improved.              Likewise, at the plea hearing, McDade had

apparent      difficulty        understanding            the    proceedings,     but   his


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understanding appeared to improve after he was allowed to ask

questions and have his lawyer explain the information in simpler

terms.

            For these reasons, there is no basis to overturn the

district court’s finding that McDade entered his plea agreement

knowingly and voluntarily.



                                      III.

            The second issue is whether the district court should

have reopened the competency hearing to reconsider its prior

determination that McDade was competent. McDade does not ask us to

determine as a matter of fact that he is not competent.                 Instead,

he contends that the district court erred by failing to reopen the

issue and consider additional evidence.               We review the district

court’s   decision   not    to   reopen    the   hearing    for   an    abuse   of

discretion.    See United States v. Banks, 482 F.3d 733, 742-43 (4th

Cir. 2007).

            As an initial matter, the government argues that McDade

waived his right to appeal on this issue.                  The plea agreement

expressly     reserves     McDade’s    “right    to     appeal    the    Court’s

determination that the Defendant is competent for purposes of 18

U.S.C. § 4241.”      J.A. 236.         The government argues that this

reservation applies only to the initial competency determination

and not the subsequent denial of McDade’s motion to reopen the


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competency issue.        We disagree.          The district court’s refusal to

reopen the competency hearing was the final component of its

consideration of whether McDade was competent to stand trial within

the meaning of 18 U.S.C. § 4241.                Therefore, we believe the plea

agreement preserves McDade’s right to argue on appeal that the

district court erred by not reopening the competency hearing.

               Nonetheless, McDade has not established that the district

court abused its discretion by refusing to reopen its competency

determination.        McDade’s argument rests primarily on an affidavit

from a third expert, Dr. James Hilkey, which McDade submitted after

the competency hearing.        In that affidavit Dr. Hilkey opines that

the    TONI-II    intelligence      test       is   a    “substandard   measure    of

cognitive (intellectual) functioning” and that Dr. Cunic should

have    used    the   WAIS-III,    “the    best     and    most   readily     accepted

standardized measure of adult intelligence.”                      J.A. 210.    McDade

also argues that the district should have reopened the competency

issue    based     on   its   observations          of    McDade’s    comprehension

difficulties during the Rule 11 hearing.

               These arguments lack merit.              Dr. Hilkey’s affidavit did

not present any new evidence supporting the conclusion that McDade

was incompetent.        Instead, it simply challenged the methodology

used by the government’s expert.                    But the district court had

already considered this precise issue about appropriate methodology

at the initial hearing.           Both experts explained the intelligence


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tests they administered, and Dr. Cunic specifically articulated the

reasons she chose to administer the TONI-II rather than the WAIS-

III.   After hearing this testimony, the district court found that

Dr. Cunic’s opinion was reliable and persuasive.                   Because Dr.

Hilkey did not address or rebut the specific concerns that led Dr.

Cunic to conclude that the TONI-II was the more appropriate test

for McDade, his affidavit gave the district court no reason to

question its prior determination.            In addition, McDade’s cognitive

difficulties     at    the   plea   hearing     were,   as    explained   above,

consistent with Dr. Cunic’s testimony.            In sum, the district court

did not abuse its discretion by refusing to reopen the competency

determination.

                                     * * *

           For   the    reasons     stated    above,    the   judgment    of   the

district court is

                                                                     AFFIRMED.




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