1 The Honorable Linda R. Reade, Chief J udge, United States District Court for the Northern District of Iowa, adopting the Report and Recommendation of the Honorable John A. Jarvey, United States Magi strate Judge for the Northern District of Iowa. 

## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________
No. 08-2756

___________ United States of America, *

* Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Miles Murphy, * * Appellant. *

___________ Submitted: May 13, 2009 Filed: July 17, 2009

___________ Before RILEY, SMITH, and COLLOTON, Circuit Judges.

___________ RILEY, Circuit Judge.

Miles Murphy (Murphy) pled guilty to possession of pseudoephedrine with intent to manufacture methamphetamine, and possession of a firearm in furtherance of a drug trafficking crime. The district court 1 denied Murphy’s motion to withdraw his guilty plea and sentenced Murphy to 300 months imprisonment. On appeal, Murphy argues the district court abused its disc retion by denying his motion to withdraw his-2- guilty plea because Murphy (1) had an ineffec tive attorney, (2) was incompetent at the time of his plea and did not enter his pl ea knowingly and voluntarily, and (3) was not legally guilty of possessing a firearm in fu rtherance of a drug trafficking crime under 18 U.S.C. § 924(c). We affirm.

I. BACKGROUND On April 21, 2006, after receiving several complaints and tips related to alleged drug activity, law enforcement we nt to Murphy’s residence. Two males answered the door, and officers arrested one of them on outstanding warrants. Officers then encountered Murphy’s fifteen-year-old son a nd another minor. Officers detected the odor of marijuana on Murphy’s son. Murphy’s son admitted smoking marijuana and granted consent to enter the son’s basement bedroom. Officers retrieved the marijuana and arrested Murphy’s son and the other minor. Officers then cleared the house looking for additional occupants. In Murphy’s seven-year-old son’s bedroom, officers saw an open closet door and a step ladder leading to an attic. The officers detected a
chemical aroma near the attic. While ch ecking the attic, one of the officers became nauseous from the chemical fumes and was taken to a hospital for treatment.

Officers seized methamphetamine manufact uring items from the attic. Officers also seized a loaded .38 caliber Derringer pi stol, digital scales, drug paraphernalia, and pseudoephedrine pills from Murphy’s bedroom. In a vehicle registered to Murphy’s girlfriend or spouse, officers found a .22 ca liber revolver and numerous items used in the manufacture of methamphetamine. Officers seized 101.13 grams of pseudoephedrine from Murphy’s residence.

After officers took Murphy into custody and read Murphy his rights, Murphy admitted he had been manufacturing methampheta mine for the last five years. Murphy
told officers he had traded used filters with methamphetamine residue for the .22 caliber revolver, and he traded one gram of methamphetamine for the .38 caliber pistol. Murphy stated he carried the firearms b ecause they came with the nature of the-3- business. Murphy’s fifteen-year-old son reported Murphy sometimes carried a pistol for protection.

Murphy was charged in a five-count indi ctment. Murphy pled guilty to Count 1, possession of pseudoephedr ine with intent to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(1) and (2), and Count 3, possession of a firearm in furtherance of a drug trafficking crim e, in violation of 18 U.S.C. § 924(c). The government dismissed the remaining counts.

In his plea agreement, Murphy admitted he was a felon and that he “possessed
these firearms in furtheran ce of the drug manufacturing ac tivity and used them during, and in relation to, his drug tr afficking activity by trading c ontrolled substances for the firearms.” Murphy also admitted he had been manufacturing methamphetamine for the last five years, and he cooked the me thamphetamine in the attic of his home.

During Murphy’s plea hearing on January 11, 2007, the magistrate questioned Murphy under oath regarding medications he was taking and his ability to understand what was taking place:

Judge: Have you ever suffered from or been treated for a mental illness? Murphy: I have anxiety a nd depression, Your Honor. Judge: Are you currently being treated for those? Murphy: I currently have no medication, no. I’m all right. Judge: Okay. Is there anything about those conditions that interferes with your ability to understand what you’re doing here today? Murphy: No, Your Honor.

Murphy stated he was not under the influence of any drug, medication, or alcohol, and he fully understood what he wa s doing at the hearing. The magistrate found Murphy was competent to enter hi s plea, and Murphy’s plea was entered voluntarily. The magistrate filed a Report and Recommendation (R & R) which-4- recommended the district court accept Murphy’s guilty pleas. Murphy did not object to the R & R. On January 26, 2007, the di strict court entered an order adopting the magistrate’s R & R.

On June 19, 2007, Murphy’s counsel reque sted Murphy be evaluated for mental competency. Murphy’s motion was grante d, and Murphy underwent a mental and psychiatric evaluation. The report, dated November 23, 2007, concluded Murphy “appeared to possess a reasonable factual a nd rational level of understanding regarding his current legal case. He also appear ed to possess the capacity to meaningfully interact with counsel, provided he abstains from the use of alcohol, methamphetamine, and remains medication compliant.” The re port identified no impairment in Murphy’s ability to assist his counsel, and the report also indicated “Murphy appeared to possess a fundamentally accurate factual understa nding of his current legal proceedings,” including the criminal charges against him and the responsibilities of the judge, prosecutor, and defense attorney.

On January 30, 2008, Murphy filed a moti on to withdraw his guilty pleas. The district court held a hearing on the moti on and called Murphy’s counsel to testify. Murphy’s lawyer testified she thought Murphy was competent at the time of his guilty pleas. During her time as a federal public de fender, counsel had represented competent and incompetent clients, and counsel reco mmends clients be evaluated when she has concerns. Murphy’s attorney had no such concerns regarding Murphy’s competency before his pleas. According to counsel, she first noticed Murphy seemed depressed
after the United States Probation Office issued a draft presentence investigation report indicating Murphy was facing significantly more prison time than Murphy expected.

Murphy’s lawyer testified that she and Murphy discussed before the plea hearing the possible Fourth Amendment issues st emming from law enforcement’s search of Murphy’s residence. Counsel and Murphy disagreed about whether to proceed with a motion to suppress. Murphy’s lawyer res earched the Fourth Amendment issues and-5- located some cases, but regardless of whatthe cases said, Murphy decided he did not want his son to testify.

The district court denied Murphy’s motion to withdraw his guilty pleas and sentenced Murphy to 240 months imprisonment on Count 1 and a consecutive 60 months imprisonment on Count 3. This appeal followed.

II. DISCUSSION
“This court reviews the denial of a mo tion to withdraw a guilty plea for abuse
of discretion.” United States v. Rollins , 552 F.3d 739, 741 (8th Cir. 2009) (citing
United States v. Maxwell , 498 F.3d 799, 801 (8th Cir. 2007)). A defendant may withdraw a guilty plea before the court imposes sentence if “the defendant can show a fair and just reason for requesting the w ithdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “While the ‘fair and just’ standard is a liber al one, we are mindful that ‘[t]he plea of guilty is a solemn act not to be disregarde d because of belated misgivings about the wisdom of the same.’” United States v. Thompson , 906 F.2d 1292, 1298 (8th Cir. 1990) (quoting United States v. Woosley , 440 F.2d 1280, 1281 (8th Cir. 1971)). If the
district court determines the defendant has presented a fair and just reason to withdraw his plea, the court may consider several othe r factors, such as, “whether the defendant asserts his legal innocence of the charge, the length of time between the plea and the motion to withdraw, and whether the government will be prejudiced by the withdrawal.” United States v. Gray , 152 F.3d 816, 819 (8th Cir. 1998) (citation omitted). “However, if a defendant does not present a fair and just reason for withdrawal of a guilty plea no need exists to examine the other factors.” Id. (citing
United States v. Abdullah , 947 F.2d 306, 311 (8th Cir. 1991)).

Murphy contends the district court a bused its discretion by denying Murphy’s motion to withdraw his pleas for three reas ons: (1) his lawyer was ineffective; (2) as a result of Murphy’s alleged mental illness and methamphetamine addiction, he was incompetent to enter a guilty plea, and hi s pleas were unknowing and involuntary; and-6- (3) pursuant to Watson v. United States , 552 U.S. 74, 128 S. Ct. 579 (2007), the court was barred from finding Murphy guilty of posse ssing a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c). We address each of Murphy’s claims in

turn.

A. Legal Representation Murphy argues his attorney did not eff ectively represent him because counsel failed to bring discovery docum ents to her meetings with Murphy and failed to file a motion to suppress the evidence seized duri ng law enforcement’s search of Murphy’s residence. “Defense counsel’s performance can serve as the requi site ‘fair and just reason’ for withdrawal [of a guilty plea] onl y if [a defendant] demonstrates both that his attorney’s performance was deficient a nd that he was prejudiced by it.” United
States v. McMullen , 86 F.3d 135, 137 (8th Cir. 1996).

Murphy waived the issue of counsel’s allegedly deficient failure to bring discovery documents to her meetings with Murphy because Murphy failed to raise this issue in his motion to withdraw his guilty plea. See United States v. Washington , 515 F.3d 861, 864 (8th Cir. 2008) (reasoning, claims not presented “to the district court in the first instance by a motion to withdraw [a] guilty plea” are not “cognizable on direct appeal” (citing United States v. Murphy , 899 F.2d 714, 716 (8th Cir. 1990))). Even if this issue were cognizable on appeal, it is without merit. It is undisputed Murphy’s lawyer had access to the complete discove ry file and discussed with Murphy the charges against him and the evidence in the case. Murphy fails to explain how his own lack of access to any specific discovery docum ents affected his decision to plead guilty or prejudiced him in any way. See Abdullah , 947 F.2d at 312 (whe re the defendant’s attorney reviewed the government’s case f ile, defendant’s argument for withdrawal of his guilty plea based on defendant’s own l ack of access to the case file was “easily dismissed”). The fact Murphy did not persona lly review the discovery file is not a fair and just reason for withdrawal of Murphy’s guilty pleas.-7- Murphy’s attorney’s alleged failure to file a motion to suppress also does not provide a fair and just reason for withdrawal of Murphy’s guilty pleas. It is undisputed counsel and Murphy discussed the search of Murphy’s residence, counsel researched the Fourth Amendment issues, and Murphy instructed his lawyer not to file a motion to suppress because Murphy did not want hi s son to testify. Murphy failed to object to his counsel’s performance at the plea hear ing, despite knowing counsel had not filed a motion to suppress. Murphy acknowledged under oath that he was fully satisfied with his counsel’s representation. See United States v. Newson , 46 F.3d 730, 733 (8th Cir. 1995) (“[Defendant]’s failure to assert any objections to his counsel’s performance at the change-of-plea hearing, despite his knowledge” of the availability of a defense, “‘refutes any claim of ineffective assistance of counsel as a basis for withdrawing his plea.’” (quoting Abdullah , 947 F.2d at 312)). The fact Murphy now regrets his decision not to file a motion to suppress doe s not constitute a fair and just reason for withdrawal of Murphy’s guilty pleas.

B. Mental State and Methamphetamine Addiction Murphy asserts “his mind was unclear and his decision making capacity was impaired” at the time of his guilty pleas because Murphy was (1) not taking medication for a mental deficiency that required medica tion, and (2) suffering the long term effects of his methamphetamine addi ction. Murphy c ontends he was incompetent to plead guilty and his guilty pleas were neither knowing nor voluntary. We disagree.

“A defendant is competent if []he possesses a ‘sufficient present ability to consult with h[is] lawyer with a reasonable degree of rational understanding’ and ‘has a rational as well as factual understanding of the proceedings.’” United States v.
Martinez , 446 F.3d 878, 881 (8th Cir. 2006) (quoting Dusky v. United States , 362 U.S. 402, 402 (1960) (per curiam)). The districtcourt’s determinati on of the defendant’s competency may include numerous factors, such as “‘expert medical opinions and the
court’s observation of the defendant’s demeanor.’” Id. (quoting United States v.
Denton , 434 F.3d 1104, 1112 (8th Cir. 2006)). “T he district court’s finding that a2 On appeal, Murphy has not even identifie d the mental illness he claims to be suffering, much less provided documentation of any diagnosed condition or evidence that such condition requires prescription medication. Because Murphy stated at the plea hearing that he suffered from “anxiety a nd depression,” we will assume this is the mental condition Murphy alleges rendered him incompetent to plead guilty.

-8- defendant is competent is reviewed for clear error.” Id. (citing United States v.
Robinson , 253 F.3d 1065, 1068 (8th Cir. 2001)).

“Even if suffering from a disease, a de fendant’s plea is valid if the record demonstrates that he ‘understood the charges against him, was not dissatisfied with the services rendered by his attorney, and en tered his plea knowingly and voluntarily.’”
Rollins , 552 F.3d at 741-42 (quoting United States v. McNeely , 20 F.3d 886, 888 (8th Cir. 1994) (per curiam)). “Whether [a ] plea was knowing and voluntary is a mixed question of fact and law thatwe review de novo.” Gray , 152 F.3d at 819 (citing Easter
v. Norris , 100 F.3d 523, 525 (8th Cir. 1996)).

The district court did not err by dete rmining Murphy was competent and his pleas were entered knowingly and voluntarily . Murphy presented the district court with no medical evidence to support his claim he was not taking prescription medication, or that he require d medication to be mentally competent at the time he pled guilty. 2 The mental and psychiatric report, pr epared approximately ten months after Murphy’s guilty pleas, does not describe Murphy’s mental condition at the time he pled guilty. To the extent the report is probative of Murphy’s mental condition generally, the report identified no impairment in Murphy’s ability to assist his counsel and indicated, “Murphy appeared to po ssess a fundamentally accurate factual understanding of his current legal proceedings ,” including the criminal charges against him and the responsibilities of the judge, pros ecutor, and defense attorney. The report concluded, Murphy “appeared to possess a reasonable factual a nd rational level of understanding regarding his curre nt legal case. He also appeared to possess the capacity to meaningfully inte ract with counsel, provided he abstains from the use of3 Murphy insists the report’s statement that Murphy “appeared to possess the capacity to meaningfully inte ract with counsel, provided he . . . remains medication compliant” proves that, at the time of his guilty pleas, Murphy required medication to be mentally competent. Even if th e report described Murphy’s mental condition at the time of the plea hearing, this particularstatement is ambiguous at best. We agree with the district court’s reasoning it is e qually plausible the statement simply means Murphy may now encounter mental difficulties if he discontinues a course of medication he was prescribed after the plea hearing.

-9- alcohol, methamphetamine, and remains medication compliant.” 3 Nothing in the report indicates Murphy was incompetent, or that his guilty pleas were unknowing or involuntary.

At the plea hearing, Murphy unequivocally stated (1) he was not on any medication, (2) nothing about his anxiety a nd depression interfere d with his ability to understand the proceedings, (3) he was not unde r the influence of any drug or alcohol, (4) he fully understood what he was doing at the plea hearing, and (5) he was fully satisfied with his lawyer’s representation. Murphy’s statements strongly support the district court’s finding Murphy was compet ent and his plea was entered knowingly and voluntarily. Finally, none of the testimony at the hearing on the motion to withdraw Murphy’s guilty pleas indicated Murphy was incompetent or that his pleas were entered unknowingly or involuntarily. Becau se all available evidence suggested Murphy was competent and his pleas were entered knowingly and voluntarily, the
district court did not abuse its discre tion by determining Murphy’s alleged mental condition and methamphetamine addiction di d not constitute a “fair and just reason” for withdrawing his guilty pleas.

C. Possessing a Firearm in Furthera nce of a Drug Trafficking Crime Murphy contends, under Watson , the district court was barred from finding Murphy guilty of possessing a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c). In Watson , the Supreme Court held a person does not “use” a-10- firearm during and in relation to a drug tr afficking crime within the meaning of 18 U.S.C. § 924(c) when he receives the firearm in trade for drugs. Watson , 552 U.S. at __, 128 S. Ct. at 586.

Section 924(c) contains tw o separate offenses: (1) using or carrying a firearm during or in relation to a drug traffick ing crime, and (2) possessing a firearm in furtherance of a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A); United States
v. Gamboa , 439 F.3d 796, 810 (8th Cir. 2006). Watson addresses only the first alternative. Murphy was ch arged with, and pled guilty to, both alternatives. The government concedes, as it did before the district court, that an insufficient factual basis existed to establish Murphy used a firearm during and in relation to a drug trafficking crime. However, the governme nt argues, there remained a substantial evidentiary basis to conclude Murphy posse ssed a firearm in furtherance of a drug trafficking crime.

“To secure a conviction under § 924(c)(1 )(A), the government must present evidence from which a reasonable juror coul d find a ‘nexus’ between the defendant’s possession of the charged firearm and the drug crime, such that this possession had the effect of ‘furthering, advanc ing or helping forward’ the drug crime.” United States v.
Sanchez-Garcia , 461 F.3d 939, 946 (8th Cir. 2006) (quoting United States v. Hamilton

, 332 F.3d 1144, 1149-50 (8th Cir. 2003)). Th e fact “the defendant simultaneously possessed drugs and a firearm, standing alone,” is insufficient to sustain a conviction.
Id. (citing United States v. Spencer , 439 F.3d 905, 914 (8th Cir. 2006)) “Instead, the jury must be able to infer that the defe ndant’s possession of the firearm facilitated the drug crime, through evidence th at the firearm was used fo r protection, was kept near the drugs, or was in close proximity to th e defendant during drug transactions.” Id. at 946-47 (citing United States v. Thorpe , 447 F.3d 565, 568 (8th Cir. 2006); Spencer

, 439 F.3d at 914-15).4 Murphy admitted possessing both the .38 caliber pistol and the .22 caliber revolver in furtherance of a drug trafficking crime. However, the indictment lists only the .38 caliber pistol as the basis for the § 924(c) charge.

5 Even if Murphy had been charged onl y with using a firearm during and in relation to a drug trafficking crime, Watson does not provide a ba sis for invalidating Murphy’s guilty pleas because Watson was decided after Murphy pled guilty. See Brady v. United States , 397 U.S. 742, 757 (1970) (explaining, “a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise”).

-11- In his plea agreement, Murphy admitte d he “possessed these firearms in furtherance of the drug manufacturing act ivity[.]” The evidence amply supports Murphy’s admission. The .38 caliber Derringer was found in Murphy’s bedroom along with digital scales, drug paraphe rnalia, and pseudoephedrine pills. 4 Following his arrest, Murphy stated he carried the firearms because of the nature of the business, and Murphy’s fifteen-year-old son reported Mu rphy sometimes carried a pistol for protection. Despite the government’s con cession there was an insufficient evidentiary basis to convict Murphy of the use of a firearm during a nd in relation to a drug trafficking crime, an ample evidentiary basis did exist to convict Murphy of possessing
a firearm in furtherance of a drug trafficking crime. The district court did not abuse its discretion by determining the Watson decision did not provide a fair and just reason for withdrawal of Murphy’s guilty pleas. 5

Finally, Murphy argues the district court lacked jurisdiction to sentence Murphy for the § 924(c)(1)(A) violation because Watson negates Murphy’s guilt. “[A] valid guilty plea forecloses an attack on a convic tion unless ‘on the face of the record the court had no power to enter th e conviction or impose the se ntence.’” Walker v. United
States , 115 F.3d 603, 604 (8th Cir. 1997) ( quoting United States v. Vaughan , 13 F.3d 1186, 1188 (8th Cir. 1994)). Watson does not negate Murphy’s guilt or strip the district court of jurisdiction to sentence Murphy. Murphy presents no additional basis-12- for concluding the district court lacked juri sdiction to impose the sentence, and we see

none.

III. CONCLUSION We affirm the judgment and sentence of the district court.

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