UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4462

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DWAYNE FRAZIER,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Marvin J. Garbis, Senior District 

Judge. (1:11-cr-00095-MJG-2)

Argued: March 20, 2014 Decided: June 20, 2014

Before TRAXLER, Chief Judge, MOTZ, Circuit Judge, and Max O. 

COGBURN, Jr., United States District Judge for the Western 

District of North Carolina, sitting by designation.

Affirmed by unpublished opinion. Judge Cogburn wrote the 

opinion, in which Judge Motz joined. Chief Judge Traxler wrote 

a separate concurring opinion.

ARGUED: Doug Keller, Washington, D.C., for Appellant. John 

Walter Sippel, Jr., OFFICE OF THE UNITED STATES ATTORNEY, 

Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

COGBURN, District Judge: 

Dwayne Frazier pled guilty to one count of carjacking in 

contravention of 18 U.S.C. § 2119 and received a sentence of 144 

months imprisonment. Frazier challenges his conviction, arguing 

that the district court erred by declining to hold a competency 

hearing after defense counsel raised concerns regarding 

Frazier’s ability to aid in his own defense at trial. Frazier 

also contends that the district court committed reversible error 

by failing to apply the proper sentencing standard and by 

failing to independently exercise its sentencing discretion 

before accepting Frazier’s plea. For the reasons that follow, 

we affirm. 

I.

In January of 2012 a grand jury in the District of Maryland

returned a six-count superseding indictment against Frazier and 

a co-defendant (“the indictment”). The indictment alleged the 

following charges: a conspiracy to commit carjacking, in 

violation of 18 U.S.C. § 371; two substantive carjacking counts,

in violation of 18 U.S.C. § 2119; two counts of possession and 

brandishing of a firearm in furtherance of a crime of violence, 

in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and possession of 

a firearm by a convicted felon, in violation of 18 U.S.C. § 

922(g).
3

A.

The Friday before Frazier’s trial was to begin, defense 

counsel filed a letter under seal with the district court 

detailing his concerns regarding his client’s competency to 

proceed to trial. Among defense counsel’s concerns were 

Frazier’s ability to “understand the pros and cons of trial 

versus a plea”; “to assist in his defense”; and to 

“intelligently elect whether to testify or not.” S.J.A. 1. 

The following Monday, the district court inquired into 

these concerns with defense counsel and Frazier, outside of the 

presence of the government. After being assured by the district 

court that nothing disclosed during the ex parte discussion 

would be considered during sentencing, defense counsel explained 

to the district court that, based on approximately “a dozen 

visits” with his client, he believed Frazier to be “habitually 

under the use [sic] of narcotics at the Chesapeake Detention 

Facility.” S.J.A. 5. Defense counsel explained that during his 

visits with Frazier he “noticed stains on his fingernails.” Id. 

He noted that Frazier’s eyes were “glassy” and that Frazier 

could not pay “any degree of attention.” Id. Defense counsel 

also noted that Frazier “giggled and was giddy at inappropriate 

moments.” Id. Counsel explained that he believed such supposed 

narcotic use affected Frazier’s competency to proceed to trial 
4

principally because Frazier “may or may not be able to assist” 

in his own defense. S.J.A. 5-6. 

Frazier discussed his mental health status with the court 

and attributed his behavior to the high levels of stress and 

anxiety he was experiencing. Frazier explained that he had not 

seen his family in many years, including a two-year-old son whom 

he had not seen at all. He explained that he had been 

incarcerated for 16 years prior to being charged in the instant 

case and the prospect of an additional 33 years of imprisonment 

should he be convicted pushed his “stress level . . . off the 

chart.” S.J.A. 9. Since his incarceration he had been placed 

on a series of medications including Neurontin and Prozac, and 

while he admitted that he “smoke[ed]” and that this was a 

“problem at the Chesapeake Detention Center,” he also explained 

that he had never had a positive urinalysis “for any substance.”1

S.J.A. 8.

After hearing all such testimony, the district court 

determined that there was no basis to find Frazier incompetent 

 1 It is unclear what type of substance Frazier was admitting 

to smoking, and defense counsel did not inquire into the matter 

any further. The district court explained that the stains on 

Frazier’s fingers, which defense counsel noted in his colloquy, 

were not indicative of incompetence because it was not clear 

what substance Frazier was smoking. The district court opined 

that they could have been tobacco stains, or they could be from 

the use of “marijuana or something else.” S.J.A. 11. 
5

to proceed to trial. The district court explained that, at its 

request, the United States Marshal’s Office conferred with 

authorities at the detention facility where Frazier was being 

held, who confirmed that there was no indication that Frazier 

had taken any illegal drugs. The district court also noted 

that, as recently as the week before, Frazier had written 

letters to the court in which he had no difficulty expressing 

himself. The district court explained that the letters 

contained no indication that Frazier was delusional or had any 

difficulty making judgments. While the district court accepted 

as true defense counsel’s observations of his client, the court

concluded that there was no reason to suspect that Frazier was 

incompetent to proceed to trial. While Frazier did seem to 

giggle at inappropriate moments, the district court explained 

that such behavior “just seem[ed] to be his manner.” S.J.A. 11. 

B.

After discussing Frazier’s competency outside the presence 

of the government, the district court then turned to jury 

selection in Frazier’s trial. Moments before that was to begin, 

however, the parties notified the district court that they had 

reached a plea agreement in principle and requested a brief 

recess for the government to prepare a written agreement. 

Frazier subsequently signed a plea agreement pursuant to 

FED.R.CRIM.P. 11(c)(1)(C), under which the parties agreed to a 
6

proposed 144 month sentence. Frazier would plead guilty to 

Count Two of the Indictment, one of the substantive carjacking 

counts, and in exchange the government agreed to dismiss the 

remaining counts in the Indictment.

The district court proceeded through a lengthy colloquy 

with Frazier regarding the terms of the plea agreement during 

which it explained that if the plea was accepted, the sentence 

imposed would be 144 months. The district court also conducted 

further inquiry into Frazier’s competency before fully advising 

Frazier of the rights he would have at trial including his right 

to testify, the presumption of innocence, the government’s 

burden, and his right to appeal should he be convicted. After 

being so advised, Frazier confirmed that he still wished to 

plead guilty and the court accepted his plea. 

Upon Frazier’s request and consent by the government, the 

district court then proceeded directly to sentencing. The 

district court began by pronouncing Frazier’s criminal history 

category, the stipulated offense level under the proposed plea 

agreement, and the applicable guideline range of 135 to 168 

months. The district court then allowed the government, defense 

counsel, and Frazier the opportunity to speak. Defense counsel

stated that Frazier had asked “several intelligent questions” 

and that defense counsel believed that Frazier was competent to 

proceed with the plea hearing. J.A. 50-51.
7

The district court then considered the proposed 144 month 

sentence, noting that such a sentence was consistent with the 

plea agreements offered to Frazier’s co-defendants. The 

district court concluded that, having already tried one of 

Frazier’s co-defendants and being thoroughly familiar with the 

particular facts of the case, the proposed sentence was “in the 

range of reasonableness,” and ultimately accepted the 144 month 

sentence as the appropriate term of imprisonment. J.A. 75.

II.

Frazier now appeals his sentence, contending that (1) the 

district court erred by not holding a competency hearing to 

determine whether he could proceed to trial; and (2) that the 

district court erred by sentencing him to the agreed upon 144 

month term of imprisonment. 

A.

We hold that the district court did not abuse its 

discretion in failing to order a competency hearing. Title 18, 

United States Code, Section 4241(a) requires a district court to 

hold such a competency hearing “if there is reasonable cause to 

believe 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). Even if no 
8

motion is made by counsel, “[t]he district court must sua sponte

order a competency hearing if reasonable cause is demonstrated.” 

United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).

Whether reasonable cause has been demonstrated, however, is left 

to the discretion of the district court. Id. at 1289. 

Frazier’s challenge on appeal is a “procedural competency 

claim,” that is, he need not demonstrate that he was in fact 

incompetent at the time of his guilty plea and sentencing, but 

merely that the district court erred by not ordering a 

competency hearing. United States v. Banks, 482 F.3d 733, 742 

(4th Cir. 2007). “To prevail, the defendant must establish that 

the trial court ignored facts raising a bona fide doubt

regarding the defendant's competency to stand trial.” Walton v. 

Angelone, 321 F.3d 442, 459 (4th Cir. 2003) (internal quotation 

marks omitted).2

We review the district court’s determination that no 

reasonable cause existed to order a competency hearing for abuse 

of discretion, under which, “this Court may not substitute its 

 2 While Frazier waived his right to appeal in his plea 

agreement, a criminal defendant may not “plead guilty unless he 

does so ‘competently and intelligently.’” Godinez v. Moran, 509 

U.S. 389, 396 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 

468 (1938)).
9

judgment for that of the district court; rather, we must 

determine whether the court's exercise of discretion, 

considering the law and the facts, was arbitrary or capricious.”

Mason, 52 F.3d at 1289. 

Appellant’s principal contention is that the district court 

should have deferred to defense counsel’s impression that he was 

under the influence of narcotics rendering him unable to assist 

in his own defense. He further contends that the district 

court’s observations regarding Frazier’s competency were 

“qualitatively less meaningful” than those of defense counsel,

who had the “unique vantage point” of observing his behavior 

numerous times over a six-month period. According to appellant, 

the district court’s interaction with him was brief and involved 

“little back-and-forth discussion.” 

Besides defense counsel’s own statements of what he and his 

investigators had observed, nothing before the district court 

suggested that Frazier was incompetent to assist in his own 

defense. The district court accepted as true defense counsel’s 

impression, but determined that reasonable cause did not exist 

to suspect that Frazier was incompetent to stand trial in the 

face of other available evidence. See Mason, 52 F.3d at 1290 

(“The trial court must look at the record as a whole and accept 

as true all evidence of possible incompetence in determining 
10

whether to order a competency hearing.”) (internal quotation 

marks omitted). 

“The district court should examine all of the record 

evidence pertaining to the defendant's competence, including: 

(1) any history of irrational behavior; (2) the defendant's 

demeanor at and prior to sentencing; and (3) prior medical 

opinions on competency.” United States v. Moussaoui, 591 F.3d 

263, 291 (4th Cir. 2010) (citing United States v. General, 278 

F.3d 389, 397 (4th Cir. 2002)) (internal quotation marks 

omitted). Here, the district court properly considered that 

Frazier had not tested positive for drug use at the detention 

facility where he was being held, a fact which was bolstered by 

Frazier’s own statement that although he “smoked,” he had never 

tested positive during any urinalysis. Instead, Frazier 

attributed any odd behavior that defense counsel may have 

noticed to stress and anxiety, for which he was prescribed

medication. 

The district court further noted that Frazier, in a series 

of pro se letters to the court, had demonstrated that he was 

clearly capable of expressing himself and was not delusional. 

Frazier contends that such statements indicate that the district 

court applied the wrong standard in determining his competency. 

Under § 4241(a), a competency hearing is required if there is 

reasonable cause to believe a defendant is “unable to understand
11

the nature and consequences of the proceedings against him or to 

assist properly in his defense.” 18 U.S.C. § 4241(a) (emphasis 

added). According to Frazier, the district court’s statements 

indicate that it failed to consider whether he was competent to

assist in his own defense. 

A complete and thorough review of the transcript, however, 

reveals that this argument mischaracterizes the district court’s 

analysis during the ex parte hearing. Furthermore, it puts the 

cart before the horse in the § 4241 analysis in that it assumes 

the district court had determined that Frazier was suffering 

from a mental disease or defect. By its terms, § 4241 

presupposes that before a district court analyzes the effect a 

defendant’s mental disease or defect may have on defendant’s 

competency to understand the nature and consequences of the 

proceedings against or to assist properly in his defense, it has 

already found that the defendant does indeed suffer from such a 

mental disease or defect. Here, the district court’s 

questioning and analysis indicates that it was simply 

considering all available evidence to determine whether Frazier 

suffered from any mental affliction to begin with. After 

properly determining that Frazier was not suffering from a 

mental disease or defect, there was no need to continue the 

analysis. The fact that Frazier was taking Neurontin and Prozac 
12

does not necessarily mean that he was suffering from a mental 

disease or defect. 

Frazier suggests that the district court should have

ordered a psychiatric evaluation under § 4241(b), but provides 

no indication of how the district court abused in its discretion 

in declining to do so. Setting aside the fact that subsection 

(b) provides that “the court may order a psychiatric or 

psychological examination,” nothing in the record suggests that 

such an examination would have aided the district court in its 

determination. 18 U.S.C. § 4241(b) (emphasis added). Frazier 

contends that an evaluation was warranted because the source of 

Frazier’s cognitive difficulty was not clear. Again, 

Appellant’s argument assumes too much by concluding that Frazier 

was indeed suffering from cognitive difficulty when, besides 

defense counsel’s impression, nearly all the available evidence 

was to the contrary. As the district court noted, Frazier may 

have exhibited odd behavior, but that “just seem[ed] to be his 

manner.” And when Frazier was allowed the opportunity to speak 

about his counsel’s concerns, he attributed his odd behavior to 

stress, depression, and the medication he had been prescribed. 

Frazier did not show any sign of incompetency during the ex 

parte hearing or the sentencing hearing. He was able to 

understand the district court’s questions and concerns without 

any difficulty and respond precisely and cogently. Further, 
13

when the issue of Frazier’s competency arose during the plea 

hearing, defense counsel abandoned his earlier concerns and 

stated that he believed Frazier was “competent to proceed.” 

J.A. 50-51. 

The requirement of § 4241(a) that the district court grant 

a competency hearing when reasonable cause exists cannot be 

expanded to require such a hearing whenever defense counsel 

raises concerns regarding his client’s competency or where a 

defendant takes prescribed medication. Ultimately, it is up to 

the district court in its discretion to determine whether 

reasonable cause exists to require a competency hearing. We 

therefore find that the district court did not abuse its 

discretion in failing to order a hearing to determine Frazier’s 

competency to stand trial. 

B.

Appellant next contends the district court erred by 

deferring to the plea agreement in determining Frazier’s 

sentence of 144 months imprisonment. The plea agreement in this 

case was proffered pursuant to Federal Rule of Criminal 

Procedure 11(c)(1)(C). Under Rule 11(c)(1)(C), the parties may 

stipulate that “a specific sentence or sentencing range is the 

appropriate disposition of the case.” FED.R.CRIM.P. 11(c)(1)(C). 

“[S]uch a recommendation or request binds the court once the 

court accepts the plea agreement.” Id. In this case, the 
14

parties agreed in the plea agreement that 144 months 

imprisonment was the appropriate sentence.

Appellant contends that the district court erred by not 

first independently determining the appropriate sentence and 

then, considering that sentence, deciding whether it could 

accept defendant’s plea. Title 18, United States Code, Section 

3553(a) requires district courts to “impose a sentence 

sufficient, but not greater than necessary, to comply with the” 

four congressionally mandated goals of sentencing. 18 U.S.C. § 

3553(a)(2). In determining the appropriate sentence for a 

defendant, § 3553(a) requires the court to consider these goals 

as well as the other factors listed in subsection (a). 

Appellant contends that the district court erred because it 

failed to consider these factors in determining Frazier’s 

sentence. According to Appellant, the district court applied 

the wrong standard and accepted the plea because the recommended 

144 month sentence was “in the range of reasonableness.” J.A. 

75; see United States v. Tucker, 473 F.3d 556, 561 (4th Cir. 

2007) (holding that a district court’s mission in sentencing is 

not to impose a ‘reasonable’ sentence but rather, one 

sufficient, but not greater than necessary, to comply with the 

purposes of § 3553(a)). By not first determining the 

appropriate sentence, Appellant argues, the district court 

“abdicat[ed] its constitutional duty to exercise its own 
15

independent judgment in sentencing Mr. Frazier.” Appellant’s 

Br. 38.

The government contends that this court need not reach this 

issue as Frazier waived his right to appeal his sentence in his 

plea agreement and that this portion of his appeal must be 

dismissed. “Whether a defendant has effectively waived his 

statutory right to appeal his sentence is a question of law 

subject to de novo review.” General, 278 F.3d at 399. We “will 

enforce the waiver if it is valid and the issue appealed is 

within the scope of the waiver.” United States v. Davis, 689 

F.3d 349, 355 (4th Cir. 2012). Frazier’s plea agreement 

contains the following provision: 

The Defendant and this Office knowingly waive all 

right . . . to appeal whatever sentence imposed . . .

except as follows: (i) the Defendant reserves the 

right to appeal any sentence to the extent that it 

exceeds 144 months imprisonment; and (ii) this Office 

reserves the right to appeal any term of imprisonment 

to the extent that it is below 144 months’ 

imprisonment.

J.A. 85. 

“The validity of an appeal waiver depends on whether the 

defendant knowingly and intelligently agreed to waive the right 

to appeal.” United States v. Blick, 408 F.3d 162, 169 (4th Cir. 

2005). Whether an appeal waiver was knowing and intelligent is 

determined based on the totality of the circumstances and “must 

depend, in each case, upon the particular facts and 
16

circumstances surrounding that case, including the background, 

experience, and conduct of the accused.” Id. (quoting United 

States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992)). 

In this case, the record fully establishes that Frazier 

knowingly and intelligently waived his right to appeal his 

sentence if it did not exceed 144 months. During the plea 

colloquy the district court unambiguously informed Frazier of 

the appeal waiver in his plea agreement. The district court 

explained that should he be convicted at trial, he would have 

the right to appeal his conviction. By signing the plea 

agreement, the district court explained, he would be waiving his 

right to appeal the conviction. The district court also 

explained that under the plea agreement Frazier would waive his 

right to appeal any sentence not greater than 12 years. 

Frazier’s unequivocal response was that he understood and that 

he wished to move forward with his guilty plea. Moreover, 

Frazier discussed the plea agreement with defense counsel and 

confirmed that he was satisfied that he was “doing the right 

thing” by waiving his right to appeal any sentence in excess of 

12 years. J.A. 55.

Appellant contends that the appeal waiver is not valid 

because “the district court never validly accepted” the plea 

agreement. Appellant’s Br. 47. Appellant contends that because 

the district court failed to exercise its sentencing authority 
17

to independently determine the appropriate sentence, the plea 

agreement was never validly accepted, and because the plea was 

never validly accepted, the plea waiver has no vitality. 

Whether the district court was required to consider the §

3553(a) factors to determine the appropriate sentence before 

accepting Frazier’s plea has no impact on the valid appeal 

waiver in the plea agreement. The acceptance of a plea and 

sentencing are two separate and distinct phases of criminal 

procedure. Acceptance of a plea is governed by Federal Rule of 

Criminal Procedure 11(b) while sentencing is governed by Rule 

32. Not only is there no binding authority for Appellant’s 

proposition, Federal Rule of Criminal Procedure 11(d) recognizes 

that acceptance of a plea is distinct from sentencing, as a plea 

may be withdrawn “after the court accepts the plea, but before 

it imposes sentence.” FED.R.CRIM.P.11(d)(2). Because Frazier 

knowingly and intelligently waived his right to appeal any 

sentence in excess of 12 years pursuant to his plea agreement, 

we dismiss his sentencing challenge.

III.

For the foregoing reasons, we affirm the judgment of the 

district court.

AFFIRMED 
18
19

TRAXLER, Chief Judge, concurring in the result:

I agree, for the reasons expressed by the majority, that 

the district court did not abuse its discretion in failing to 

order a competency hearing. However, because my analysis of the 

other issue Frazier raises differs from that of the majority, I 

write separately.

When a defendant pleads guilty to a charged offense, 

Federal Rule of Criminal Procedure 11(c)(1)(C) allows the 

parties to “agree that a specific sentence or sentencing range 

is the appropriate disposition of the case.” When the parties 

reach this type of agreement (“a C-plea”), “the court may accept 

the agreement, reject it, or defer” its decision until after 

reviewing the presentence report. Fed. R. Crim. P. 11(c)(3)(A). 

Yet although the court is free to accept or reject the plea 

agreement, the parties’ agreed-upon sentence “binds the court 

once the court accepts the plea agreement.” Fed. R. Crim. P. 

11(c)(1)(C). Frazier contends that the district court erred in 

accepting his C-plea without finding that the agreed-upon 

sentence was sufficient but not greater than necessary to serve 

the sentencing goals identified in 18 U.S.C. § 3553. 

The government argues that we need not review the merits of 

Frazier’s argument because Frazier’s plea agreement contains a 

waiver of his right to appeal a sentence of 144 months, the 

sentence Frazier received. I disagree. If Frazier is correct 
20

that the district court committed reversible error in accepting 

the plea agreement, then the agreement is invalid and neither 

side is bound by the terms therein, including the appellate 

waiver. See United States v. Portillo-Cano, 192 F.3d 1246, 1250 

(9th Cir. 1999). I therefore turn to the merits of Frazier’s 

argument. 

Because Frazier asserts it for the first time on appeal, 

our review is for plain error only. See United States v. Olano, 

507 U.S. 725, 732 (1993). To succeed on plain-error review, a 

defendant must show: (1) there was error, (2) the error was 

plain, and (3) the error affected his substantial rights. See

id. Even if a defendant can satisfy these requirements, 

correction of the error remains in the court’s discretion, which 

it “should not exercise . . . unless the error seriously affects 

the fairness, integrity, or public reputation of judicial 

proceedings.” Id. (internal quotation marks and alteration 

omitted). 

Sentencing Guidelines § 6B1.2(c) governs whether a district 

court should approve a plea agreement that includes a specific 

sentence. The policy statement states that 

the court may accept the agreement if the court is 

satisfied either that:

(1) the agreed sentence is within the applicable 

guideline range; or 
21

(2) (A) the agreed sentence is outside the applicable 

guideline range for justifiable reasons; and (B) those 

reasons are set forth with specificity in the 

statement of reasons form.

U.S.S.G. § 6B1.2(c) p.s.; see Freeman v. United States, 131 S. 

Ct. 2685, 2692 (2011) (plurality opinion); id. at 2696 

(Sotomayor, J., concurring in the judgment).

Here, the district court explicitly noted that the parties 

had stipulated that the applicable guideline range was 135 to 

168 months, and Frazier does not argue otherwise now. In 

arguing that the district court’s finding that the agreed-upon 

sentence was reasonable did not provide a sufficient basis for 

the district court to adopt the plea agreement, Frazier does not 

make reference to U.S.S.G. § 6B1.2(c). Rather, he argues that, 

in order to validly adopt the agreement, the district court 

needed to explicitly find that the agreed-upon sentence was 

“‘sufficient, but not greater than necessary’” to accomplish the 

goals of sentencing. Kimbrough v. United States, 552 U.S. 85, 

101 (2007) (quoting 18 U.S.C. § 3553(a)). Essentially, his 

argument would allow the district court to accept a C-plea only 

if the agreed-upon sentence were exactly the sentence that the 

district court would have imposed if left to its own devices. I 

am not aware of any case that has limited a district court’s 

discretion regarding whether to accept a C-plea in this way, and 

such a limitation would seem to be at odds with U.S.S.G. § 
22

6B1.2(c). Thus, in my view, the district court did not err –

and certainly did not plainly err – in approving the agreement.