USCA4 Appeal: 22-4272 Doc: 41 Filed: 05/02/2024 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-4272
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEORNDRE TYVAUN FITZHUGH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:19-cr-00532-TDS-1)
Submitted: March 27, 2024 Decided: May 2, 2024
Before AGEE and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam opinion.
ON BRIEF: Louis C. Allen, Federal Public Defender, Ames C. Chamberlin, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Eric Lloyd Iverson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4272 Doc: 41 Filed: 05/02/2024 Pg: 2 of 5
PER CURIAM:
Deorndre Tyvaun Fitzhugh pleaded guilty, pursuant to a written plea agreement, to
production of child pornography, in violation of 18 U.S.C. § 2251(a), (e), and possession
of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). The district court
sentenced Fitzhugh to 480 months’ imprisonment. On appeal, Fitzhugh’s counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal but questioning whether the district court was correct in
finding that Fitzhugh was competent to enter a guilty plea. Fitzhugh was informed of his
right to file a pro se supplemental brief, but he has not done so. The Government has
moved to dismiss the appeal pursuant to the appellate waiver in Fitzhugh’s plea agreement.
For the reasons explained below, we affirm in part and dismiss in part.
We start with the recognition that the appellate waiver does not prevent our review
of the district court’s findings that Fitzhugh was competent to proceed and plead guilty.
To explain, an appellate waiver in a plea agreement does not preclude our consideration of
a “colorable claim that the plea agreement itself—and hence the waiver of appeal rights
that it contains—is tainted by constitutional error.” United States v. Attar, 38 F.3d 727,
733 n.2 (4th Cir. 1994). And a defendant’s claim that he was not competent to enter into a
plea agreement and plead guilty implicates his constitutional right to due process. United
States v. General, 278 F.3d 389, 396 (4th Cir. 2002). That is, a district court’s acceptance
of a guilty plea by a defendant who is not competent violates due process. See Pate v.
Robinson, 383 U.S. 375, 378 (1966) (recognizing that “conviction of an accused person
while he is legally incompetent violates due process”); United States v. Tucker, 60 F.4th
2 USCA4 Appeal: 22-4272 Doc: 41 Filed: 05/02/2024 Pg: 3 of 5
879, 883 (4th Cir.) (“A person who is not competent may not be tried for—or plead guilty
to—a crime.”), cert. denied, 144 S. Ct. 179 (2023). We therefore deny the Government’s
motion to dismiss in part and will consider Fitzhugh’s competence to proceed before the
district court and enter his guilty plea.
In evaluating a defendant’s competence to proceed, a district court must assess
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.” United States v. Roof, 10 F.4th 314,
341 (4th Cir. 2021) (internal quotation marks omitted). Congress enacted 18 U.S.C. § 4241
to provide a “statutory framework” for making competency determinations. General, 278
F.3d at 396. Under that statute, the defendant has the burden of proving incompetence.
United States v. Robinson, 404 F.3d 850, 856 (4th Cir. 2005). To satisfy that burden, the
defendant must prove by a preponderance of the evidence that he “is presently suffering
from a mental disease or defect [that] render[s] him . . . unable to understand the nature
and consequences of the proceedings against him or to assist properly in his defense.” Id.
(quoting 18 U.S.C. § 4241(d)).
We review a district court’s competency finding for clear error. Roof, 10 F.4th at
341 & n.8. “A finding is clearly erroneous when although there is evidence to support it,
the reviewing court on the entire evidence is left with the definite and firm conviction that
a mistake has been committed.” Butts v. United States, 930 F.3d 234, 238 (4th Cir. 2019)
(internal quotation marks omitted). “Because district courts are in the best position to make
3 USCA4 Appeal: 22-4272 Doc: 41 Filed: 05/02/2024 Pg: 4 of 5
competency determinations . . . we appropriately afford them wide latitude.” Roof, 10
F.4th at 341 n.8 (alteration and internal quotation marks omitted).
The district court made two competency findings in this case. First, the district court
found that Fitzhugh was competent to proceed after a competency hearing under § 4241
and before the Fed. R. Crim. P. 11 hearing. The district court made that finding after
receiving reports and testimony from three psychologists who evaluated Fitzhugh and
considering other testimony and evidence. We have thoroughly reviewed the record and
discern no clear error in that finding. Second, the district court found during the Rule 11
hearing that Fitzhugh was competent to plead guilty. Having examined the transcript of
the Rule 11 hearing, we are satisfied that the district court again did not clearly err in
making that competency finding. We also conclude that Fitzhugh’s guilty plea was
knowing, voluntary, and supported by an independent factual basis. See United States v.
DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
Turning to the appellate waiver in this case, we review de novo the waiver’s validity
and “will enforce the waiver if it is valid and if the issue being appealed falls within the
scope of the waiver.” United States v. Boutcher, 998 F.3d 603, 608 (4th Cir.
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USCA4 Appeal: 22-4272 Doc: 41 Filed: 05/02/2024 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-4272
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEORNDRE TYVAUN FITZHUGH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:19-cr-00532-TDS-1)
Submitted: March 27, 2024 Decided: May 2, 2024
Before AGEE and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam opinion.
ON BRIEF: Louis C. Allen, Federal Public Defender, Ames C. Chamberlin, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Eric Lloyd Iverson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4272 Doc: 41 Filed: 05/02/2024 Pg: 2 of 5
PER CURIAM:
Deorndre Tyvaun Fitzhugh pleaded guilty, pursuant to a written plea agreement, to
production of child pornography, in violation of 18 U.S.C. § 2251(a), (e), and possession
of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). The district court
sentenced Fitzhugh to 480 months’ imprisonment. On appeal, Fitzhugh’s counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal but questioning whether the district court was correct in
finding that Fitzhugh was competent to enter a guilty plea. Fitzhugh was informed of his
right to file a pro se supplemental brief, but he has not done so. The Government has
moved to dismiss the appeal pursuant to the appellate waiver in Fitzhugh’s plea agreement.
For the reasons explained below, we affirm in part and dismiss in part.
We start with the recognition that the appellate waiver does not prevent our review
of the district court’s findings that Fitzhugh was competent to proceed and plead guilty.
To explain, an appellate waiver in a plea agreement does not preclude our consideration of
a “colorable claim that the plea agreement itself—and hence the waiver of appeal rights
that it contains—is tainted by constitutional error.” United States v. Attar, 38 F.3d 727,
733 n.2 (4th Cir. 1994). And a defendant’s claim that he was not competent to enter into a
plea agreement and plead guilty implicates his constitutional right to due process. United
States v. General, 278 F.3d 389, 396 (4th Cir. 2002). That is, a district court’s acceptance
of a guilty plea by a defendant who is not competent violates due process. See Pate v.
Robinson, 383 U.S. 375, 378 (1966) (recognizing that “conviction of an accused person
while he is legally incompetent violates due process”); United States v. Tucker, 60 F.4th
2 USCA4 Appeal: 22-4272 Doc: 41 Filed: 05/02/2024 Pg: 3 of 5
879, 883 (4th Cir.) (“A person who is not competent may not be tried for—or plead guilty
to—a crime.”), cert. denied, 144 S. Ct. 179 (2023). We therefore deny the Government’s
motion to dismiss in part and will consider Fitzhugh’s competence to proceed before the
district court and enter his guilty plea.
In evaluating a defendant’s competence to proceed, a district court must assess
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.” United States v. Roof, 10 F.4th 314,
341 (4th Cir. 2021) (internal quotation marks omitted). Congress enacted 18 U.S.C. § 4241
to provide a “statutory framework” for making competency determinations. General, 278
F.3d at 396. Under that statute, the defendant has the burden of proving incompetence.
United States v. Robinson, 404 F.3d 850, 856 (4th Cir. 2005). To satisfy that burden, the
defendant must prove by a preponderance of the evidence that he “is presently suffering
from a mental disease or defect [that] render[s] him . . . unable to understand the nature
and consequences of the proceedings against him or to assist properly in his defense.” Id.
(quoting 18 U.S.C. § 4241(d)).
We review a district court’s competency finding for clear error. Roof, 10 F.4th at
341 & n.8. “A finding is clearly erroneous when although there is evidence to support it,
the reviewing court on the entire evidence is left with the definite and firm conviction that
a mistake has been committed.” Butts v. United States, 930 F.3d 234, 238 (4th Cir. 2019)
(internal quotation marks omitted). “Because district courts are in the best position to make
3 USCA4 Appeal: 22-4272 Doc: 41 Filed: 05/02/2024 Pg: 4 of 5
competency determinations . . . we appropriately afford them wide latitude.” Roof, 10
F.4th at 341 n.8 (alteration and internal quotation marks omitted).
The district court made two competency findings in this case. First, the district court
found that Fitzhugh was competent to proceed after a competency hearing under § 4241
and before the Fed. R. Crim. P. 11 hearing. The district court made that finding after
receiving reports and testimony from three psychologists who evaluated Fitzhugh and
considering other testimony and evidence. We have thoroughly reviewed the record and
discern no clear error in that finding. Second, the district court found during the Rule 11
hearing that Fitzhugh was competent to plead guilty. Having examined the transcript of
the Rule 11 hearing, we are satisfied that the district court again did not clearly err in
making that competency finding. We also conclude that Fitzhugh’s guilty plea was
knowing, voluntary, and supported by an independent factual basis. See United States v.
DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
Turning to the appellate waiver in this case, we review de novo the waiver’s validity
and “will enforce the waiver if it is valid and if the issue being appealed falls within the
scope of the waiver.” United States v. Boutcher, 998 F.3d 603, 608 (4th Cir. 2021) (internal
quotation marks omitted). Upon review of the record, including the plea agreement and
the transcript of the Rule 11 hearing, we are satisfied that Fitzhugh knowingly and
voluntarily waived his right to appeal his conviction and sentence with some exceptions
that are not met here. Accordingly, we grant in part the Government’s motion to dismiss
and dismiss the appeal as to all issues within the scope of the appellate waiver.
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In accordance with Anders, we have reviewed the entire record in this case and have
found no potentially meritorious grounds for appeal that are outside of the appellate
waiver’s scope or not waivable by law. We therefore grant in part the Government’s
motion to dismiss and dismiss the appeal as to all issues covered by the appellate waiver.
We also deny in part the motion to dismiss and affirm as to any issue not precluded by the
appellate waiver.
This court requires that counsel inform Fitzhugh, in writing, of the right to petition
the Supreme Court of the United States for further review. If Fitzhugh requests that a
petition be filed, but counsel believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Fitzhugh.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART, DISMISSED IN PART