United States v. Michelle Hebron, 4th Cir. (2011)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 10-4748
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
MICHELLE HEBRON, a/k/a Michelle Hell, a/k/a BG,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(1:08cr00086WDQ16)
Submitted:
July 21, 2011
Before KING and

Circuit Judge.
DAVIS,
Decided:
Circuit
Judges,
and
August 11, 2011
HAMILTON,
Senior
Affirmed by unpublished per curiam opinion.
Raymond J. Rigat, Washington, D.C., for Appellant. Rod J.

Rosenstein, United States Attorney, Christopher M. Mason,
Special Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michelle
sentence
Hebron
on
one
racketeering
appeals
count
of
enterprise
in
her
conviction
conspiracy
violation
to
of
and
360
month
participate
18
U.S.C.
in
1962.
Hebron, who pled guilty to the offense, raises three claims of

error
on
appeal.
First,
she
alleges
that
the
district
court
abused its discretion when it failed to conduct a competency

hearing. Second, she claims that the district court abused its
discretion
when
it
accepted
her
guilty
plea.
Finally,
she
contends that the district court abused its discretion when it

denied
her
motion
to
withdraw
her
guilty
plea
prior
to
sentencing. Finding no merit in Hebrons contentions, we affirm

for the reasons that follow.
I. Competency Hearing
Neither Hebron nor the government requested a competency
hearing
court.
hearing
at
A
any
point
district
if
there
in
court
is
the
proceedings
shall
sponte
sua
reasonable
before
cause
order
to
the
a
believe
district
competency
that
the
defendant may presently be 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(a). This court has noted that [i]n determining
2
whether there is reasonable cause to order a competency hearing,

a trial court must consider all evidence before it, including
evidence
trial,
of
irrational
and
medical
behavior,
the
opinions
defendants
concerning
demeanor
the
at
defendants
competence. United States v. Mason, 52 F.3d 1286, 1290 (4th

Cir. 1995). We review a district courts failure to sua sponte
order
competency
hearing
for
abuse
of
discretion.
United
States v. Banks, 482 F.3d 733, 742 (4th Cir. 2007).

Here, Hebron is unable to point to examples of irrational
behavior,
demeanor
that
raised
questions
regarding
her
competence, medical opinions addressing her competence, or any

other
evidence
believe
that
proceedings
defense.
that
she
give
failed
against
Because
would
her
to
or
Hebron
rise
to
reasonable
comprehend
was
fails
unable
to
show
the
to
nature
assist
in
reasonable
cause
to
of
the
her
own
cause
that
would require the district court to order a competency hearing,

we refuse to find that the district court abused its discretion
in failing to do so.
During
questions
the
to
Specifically,
which
the
the
language
she
11
determine
understanding
English
Rule
was
colloquy,
whether
proceedings
judge
and
ensured
understood
pleading
the
guilty
3
district
Hebron
was
and
the
that
Hebron
the
nature
and
the
judge
capable
plea
of
asked
agreement.
understood
the
maximum
of
charge
the
to
possible
penalties. After Hebron made the district judge aware of her

mental health history of schizophrenia and hallucinations, the
judge carefully ensured that Hebron was taking her medications
nightly as prescribed, and determined that she had taken her
prescribed
doses
the
night
previous.
The
judge
also
asked
questions of Hebrons attorney regarding his interactions with

Hebron. Hebrons attorney stated that he had met with Hebron
nine
times
and
had
at
least
five
phone
calls
with
her
and
assured the judge that Hebron had not said or done anything to
raise concerns about her ability to understand the proceedings.
Hebrons attorney noted that he had promised Hebron that he
would request a medical evaluation prior to sentencing. Although
Hebrons
attorney
requested
that
the
judge
order
medical
evaluation prior to sentencing, her attorney did not raise any

questions
or
concerns
regarding
Hebrons
competency
to
enter
into a plea agreement. While the decision by Hebrons attorney

to request a medical evaluation prior to sentencing and not to
request a competency hearing despite his knowledge of her mental
health
history
indication
that
is
not
dispositive,
Hebrons
attorney
it
did
does
not
provide
have
strong
doubts
about
Hebrons competency.
In Mason, we found that the district court had abused its
discretion in failing to order a competency hearing where the
court
had
before
it
evidence
of
4
Masons
pre-trial
suicide
attempt,
initial
defendants
medical
competence,
reports
and
raising
affidavits
concerns
from
about
Masons
the
counsel
attesting to Masons doctors belief that Mason was incompetent.

52 F.3d at 1293. The court there found that the facts clearly
gave rise to reasonable cause to believe the defendant may have
been incompetent and remanded for a retrospective determination
of Masons competence. Id. Here, unlike in Mason, there is no
medical
evidence
questions
of
concerning
incompetency
Hebrons
and
ability
to
no
evidence
understand
raising
what
was
during
the
happening.
The
responses
of
Hebron
and
her
attorney
colloquy demonstrate that she was capable of consulting with her

attorney and understood the nature of the proceedings against
her. See United States v. General, 278 F.3d 389, 395-96 (4th
Cir. 2002) (The test for determining competency is whether [a
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 a factual understanding
of
the
proceedings
against
him.)
(citations
omitted)
(alterations in original). Hebron fails to show that reasonable

cause existed to raise doubts about her competency to enter into
a guilty plea, and we reject her claim that the district court
abused its discretion by failing to order a competency hearing
prior to accepting her plea.
5
II. Acceptance of Plea

In addition to her procedural claim that the district court
abused
its
discretion
in
failing
to
conduct
competency
hearing, Hebron also raises a substantive competency claim. A

defendant raising a substantive claim that he was not competent
to
be
convicted
must
demonstrate
his
incompetency
by
preponderance of the evidence. Beck v. Angelone, 261 F.3d 377,

388 (4th Cir. 2001). The test for determining competency, as set
forth
by
the
Supreme
Court,
is
whether
defendant
has
sufficient present ability to consult with his lawyer with a

reasonable degree of rational understandingand whether he has a
rational as well as a factual understanding of the proceedings
against him. Dusky v. United States, 362 U.S. 402, 402 (1960)
(internal quotation marks omitted). We review a district courts
determination that a defendant is competent to enter a guilty
plea for abuse of discretion. United States v. Moussaoui, 591
F.3d 263, 291 (4th Cir. 2010).
Hebron
argues
that
the
district
court
violated
her
substantive due process rights when it accepted her plea despite

having been made aware of her long-term mental illness, the fact
that she was taking several psychotropic medications at the time
of her plea, and the fact that her attorney had requested a
medical
evaluation
during
the
plea
colloquy.
This
court
has
explained, however, that [n]ot every manifestation of mental

6
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)
(quoting
United
States
ex
rel.
Foster
v.
DeRobertis, 741 F.2d 1007, 1012 (7th Cir. 1984)). In addition,

we have emphasized that the fact that the petitioner has been
treated with anti-psychotic drugs does not per se render him
incompetent
to
stand
trial.
Id.
Moreover,
the
fact
that
Hebrons attorney requested a medical evaluation weighs against

Hebrons claim here, as her attorney specifically requested an
evaluation
prior
to
sentencing,
strong
suggestion
that
he
intended to use the results to present mitigating circumstances

at sentencing and was not concerned with competency issues at
the time of the plea. Hebrons reliance on her mental illness to
support her substantive competence claim fails to demonstrate an
abuse of discretion by the district court in accepting her plea,
particularly
in
light
of
the
extensive
inquiry
into
the
voluntariness and intelligence of her decision by the district

court.
As
discussed
in
detail
supra,
the
district
court
here
conducted a thorough Rule 11 colloquy. There is nothing in the

record
to
reflect
that
Hebron
was
unable
to
communicate
effectively with her attorney or that she failed to understand

the
consequences
of
her
guilty
7
plea.
Among
the
issues
established during the plea colloquy and while Hebron was under
oath included the following:
(1)
That Hebron was satisfied with the representation of
her counsel;
(2)
That
Hebron
understood
the
elements
of
and
maximum
penalties for the crime to which she was pleading guilty;

(3)
That Hebron understood she had the right to plead not
guilty,
but
that
by
pleading
guilty
she
was
foregoing
certain rights, including the right to a jury trial;

(4)
That Hebrons decision to plead guilty was not the
result of any threats or promises and was the result of her

own free will and because she was guilty;
(5)
That Hebron agreed that she had read and agreed to the
terms
of
the
plea
agreement
and
the
stipulated
facts
attached to it.
Throughout
this
colloquy,
the
district
judge
had
an
opportunity to observe Hebrons demeanor and tone in response to

these questions before deciding to accept her plea as knowing
and voluntary. In Beck, we refused to disturb the trial courts
conclusion that the defendant was competent to plead guilty. 261
F.3d at 383, 392. In that case, the trial court relied upon an
extensive plea colloquy during which the defendant was clear
and responsive in expressing his understanding of the nature of
the
charges
against
him,
his
waiver
8
of
certain
rights
by
entering a guilty plea, and the voluntariness of his decision.

Id. at 388. Moreover, Beck did nothing to lead his counsel or
the state trial court to question his competency and none of
the mental health experts that examined him indicated that Beck
was incompetent to stand trial or assist in his defense. Id. at
388-89. Similar facts obtain here, and the district court thus
acted
well
within
its
discretion
in
concluding
Hebron
was
competent to enter a guilty plea.
III. Denial of Motion to Withdraw Plea

This court reviews a district courts denial of a motion to
withdraw a plea for abuse of discretion. United States v. Moore,
931 F.2d 245, 248 (4th Cir. 1991). A defendant is permitted to
withdraw a guilty plea if she can show a fair and just reason
for requesting the withdrawal. Fed. R. Crim. P. 11(d)(2)(B). We
have
instructed
district
courts
to
consider
six
factors
in
determining whether a defendant has met this burden: (1) whether

the defendant has offered credible evidence that her plea was
not
knowing
or
not
voluntary;
(2)
whether
the
defendant
has
credibly asserted her legal innocence; (3) whether there has

been a delay between the entering of the plea and the filing of
the motion to withdraw the plea; (4) whether the defendant has
had
the
close
withdrawal
will
assistance
cause
of
competent
prejudice
9
to
the
counsel;
(5)
government;
whether
and
(6)
whether
it
will
inconvenience
the
court
and
waste
judicial
resources. Moore, 931 F.2d at 248.

Prior to sentencing, Hebron sent several letters to the
court requesting leave to withdraw her guilty plea. In her first
three letters, Hebron wrote that her decision to enter a guilty
plea
had
been
based
on
misunderstanding,
claiming
her
attorney had told her the sentencing range in the plea agreement
was
200-260
months.
Hebron
claimed
she
would
have
not
have
agreed to the plea if she had known her sentencing range was
300-360
months.
In
her
fourth
letter
to
the
court,
Hebron
acknowledged that the sentencing range she had agreed to was

300-360 months, but claimed she was not responsible for Moores
murder
and
sentencing
Hebrons
requested
hearing,
desire
to
more
Hebrons
withdraw
lenient
attorney
her
plea,
sentence.
raised
the
though
he
During
issue
stated
her
of
his
understanding that she wished to withdraw her motion to withdraw

her
plea.
Upon
questioning
by
the
district
judge,
however,
Hebron reiterated her wish to withdraw her plea and go to trial.

When the district court judge asked Hebron if she had anything
to add to the reasons provided in her letters to the court in
support of her motion, Hebron stated that she had nothing else
to say besides what I wanted to in the letters.
The district court denied Hebrons motion, setting out the
reasons for its denial in a Memorandum Opinion dated June 28,
10
2010.
Applying
the
legal
standard
set
forth
in
Moore,
the
district court concluded that the third factorthe extent of

delay between the plea and the motionweighed in Hebrons favor,
but noted that the other factors militate against permitting
withdrawal.
With
respect
to
the
first
Moore
factor,
the
district court found that Hebron had not offered any evidence to
show that her plea was not knowing or voluntary, refusing to
credit
Hebrons
claim
that
she
did
not
know
the
actual
sentencing range was 300-360 months in light of the text of the

agreement and the fact that both she and her attorney signed it.
The district court found that Hebron failed to credibly assert
her
innocencethe
letter
neither
second
factornoting
Moore
contradicts
the
stipulated
that
facts
her
final
establishing
her guilt nor offers evidence supporting her innocence. The

district
Hebron,
court
also
finding
weighed
that
the
Hebron
fourth
had
the
Moore
close
factor
against
assistance
of
competent counsel, who has shown exemplary patience and skill in

dealing
with
satisfaction
rearraignment.
her
with
and
noting
her
Because
that
Hebron
attorneys
allowing
Hebron
herself
services
to
expressed
during
withdraw
her
her
plea
would require her inclusion in yet another trial group from the
multi-defendant indictment, the district court also counted the
fifth and sixth Moore factors against Hebron, concluding that
granting
Hebrons
motion
would
11
prejudice
the
Government
and
inconvenience
the
Court.
The
district
court
concluded
that
Hebron had failed to meet her burden of demonstrating a fair

and just reason for withdrawing her plea and denied the motion.
On appeal, Hebron contends that the district court abused
its discretion when it denied her motion to withdraw her guilty
plea because it improperly weighed the fourth, fifth, and sixth
Moore factors against her and because it failed to take into
account the effects of her mental illness on the intelligence
and voluntariness of her plea. Because Hebrons arguments are
not supported by the facts in the record, she fails to show that
the district court abused its discretion in denying her motion.
Hebron
presented
argues
before
that
the
the
evidence
district
of
court
her
mental
suggested
illness
strong
possibility that her plea was not knowing or voluntary. Br. of

Appellant 22-23. She contends that the nature of her illness,
the
medications
she
was
prescribed,
and
the
quality
of
her
letters to the court should have suggested to the district court

that she was not competent to enter a guilty plea or to be
sentenced. However, as discussed in more detail supra, Hebrons
claims of incompetence are not borne out by the record, and the
district court conducted a thorough Rule 11 colloquy to ensure
Hebron understood the nature and consequences of her plea before
deciding to accept it. Moreover, even after Hebron underwent a
full medical evaluation prior to sentencing, her attorney did
12
not raise questions regarding her competency, limiting his use

of the results to argue that Hebrons history and mental illness
does weigh on what type of sentence she should be receiving.
Accordingly,
the
district
court
properly
weighed
the
first
factor against Hebron.

Hebron suggests on appeal that her mental illness should
count in her favor with respect to the second Moore factor,
noting that the history and extent of her illness also begs the
question whether Hebron was legally guilty of the crime charged
by reason of insanity. Br. of Appellant 23. This contention is
without merit. Not only did Hebrons trial counsel not raise any
concerns regarding Hebrons competency before the trial court,
but, as the government points out, Hebron stipulated to facts
that suggest she was able to appreciate the nature and quality
or the wrongfulness of [her] acts. Br. of Appellee 37, n.10
(quoting
18
U.S.C.
17
(codifying
requirements
of
insanity
defense)). The second Moore factor does not weigh in favor of

Hebrons motion.
Arguing that there was a breakdown in communication with
her attorney, Hebron also contends that she may not have had
the
close
assistance
of
counsel.
Br.
of
Appellant
23.
In
support, Hebron points to the fact that her attorney thought

Hebron intended to withdraw her motion to withdraw her plea at
her
sentencing
hearing,
Hebrons
13
complaints
to
the
district
court regarding the misunderstanding she had with her attorney

regarding the sentencing range in the plea agreement, and the
fact that her attorney failed to request a competency hearing
prior to Hebrons entering into a plea agreement. However, the
record
also
satisfaction
includes
with
evidence
her
trial
of
Hebrons
counsel.
cooperation
During
the
Rule
and
11
colloquy, Hebron expressed her satisfaction with her attorneys

representation.
Hebron
In
her
recanted
misrepresented
Moreover,
her
the
during
final
statement
sentencing
the
letter
the
that
range
sentencing
to
in
district
her
the
hearing,
court,
attorney
plea
Hebrons
had
agreement.
attorney
stated that her decision to attempt to withdraw her plea was

different, but denied that he was surprised by her choice. On
balance, it simply cannot be said that the district court abused
its discretion in weighing this factor against Hebrons request
to withdraw her plea.
Finally, Hebron argues that the district court improperly
weighed the fifth and sixth Moore factors against her because
there was a group of her co-defendants already scheduled to go
to trial in December 2010. This argument fails to appreciate the
need for the government to allocate additional resources to the
December trial if Hebron were to be included in the group of
defendants
and
the
need
additional
evidence
and
for
the
witnesses,
14
trial
but
court
it
is
to
cope
unclear
with
how
strongly these factors weigh against Hebron. Nonetheless, taken

together, the Moore factors do not provide Hebron with a fair
and
just
reason
for
withdrawing
her
plea,
and
the
district
court did not abuse its discretion when it denied her motion to
withdraw her plea.
IV.
Conclusion
Accordingly, we affirm the judgment of the district court.

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
15

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

July 21, 2011

Before KING and

August 11, 2011

Affirmed by unpublished per curiam opinion.

Raymond J. Rigat, Washington, D.C., for Appellant. Rod J.

Unpublished opinions are not binding precedent in this circuit.

Hebron, who pled guilty to the offense, raises three claims of

abused its discretion when it failed to conduct a competency

contends that the district court abused its discretion when it

sentencing. Finding no merit in Hebrons contentions, we affirm

defendant may presently be suffering from a mental disease or

proceedings against him or to assist properly in his defense.

whether there is reasonable cause to order a competency hearing,

competence. United States v. Mason, 52 F.3d 1286, 1290 (4th

States v. Banks, 482 F.3d 733, 742 (4th Cir. 2007).

competence, medical opinions addressing her competence, or any

would require the district court to order a competency hearing,

penalties. After Hebron made the district judge aware of her

questions of Hebrons attorney regarding his interactions with

evaluation prior to sentencing, her attorney did not raise any

into a plea agreement. While the decision by Hebrons attorney

attesting to Masons doctors belief that Mason was incompetent.

colloquy demonstrate that she was capable of consulting with her

(alterations in original). Hebron fails to show that reasonable

II. Acceptance of Plea

hearing, Hebron also raises a substantive competency claim. A

preponderance of the evidence. Beck v. Angelone, 261 F.3d 377,

sufficient present ability to consult with his lawyer with a

substantive due process rights when it accepted her plea despite

explained, however, that [n]ot every manifestation of mental

illness demonstrates incompetence to stand trial; rather, the

DeRobertis, 741 F.2d 1007, 1012 (7th Cir. 1984)). In addition,

Hebrons attorney requested a medical evaluation weighs against

intended to use the results to present mitigating circumstances

voluntariness and intelligence of her decision by the district

conducted a thorough Rule 11 colloquy. There is nothing in the

effectively with her attorney or that she failed to understand

That Hebron was satisfied with the representation of

penalties for the crime to which she was pleading guilty;

That Hebron understood she had the right to plead not

certain rights, including the right to a jury trial;

That Hebrons decision to plead guilty was not the

result of any threats or promises and was the result of her

opportunity to observe Hebrons demeanor and tone in response to

entering a guilty plea, and the voluntariness of his decision.

competent to enter a guilty plea.

III. Denial of Motion to Withdraw Plea

determining whether a defendant has met this burden: (1) whether

credibly asserted her legal innocence; (3) whether there has

resources. Moore, 931 F.2d at 248.

acknowledged that the sentencing range she had agreed to was

understanding that she wished to withdraw her motion to withdraw

Hebron reiterated her wish to withdraw her plea and go to trial.

district court concluded that the third factorthe extent of

sentencing range was 300-360 months in light of the text of the

her guilt nor offers evidence supporting her innocence. The