UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4318

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RASHADI ANDRE WEARING,

Defendant – Appellant.

Appeal from the United States District Court for the Western 

District of Virginia, at Charlottesville. Norman K. Moon, 

Senior District Judge. (3:04-cr-00092-nkm-bwc-8)

Submitted: September 2, 2011 Decided: September 19, 2011

Before MOTZ, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Willis J. Spaulding, Charlottesville, Virginia, for Appellant. 

Timothy J. Heaphy, United States Attorney, Nancy S. Healey, 

Assistant United States Attorney, Charlottesville, Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Rashadi Andre Wearing appeals the district court’s 

amended judgment entered after this court remanded the action 

for the purpose of having the district court make a 

retrospective determination regarding Wearing’s competency when 

he pled guilty. Wearing claims the district court erred finding

that he failed to show he was not competent when he pled guilty. 

In addition, he contends that at sentencing, the court did not 

believe it had the authority to depart downward and that his 

counsel was ineffective. We affirm.

Despite Wearing’s claim that de novo review is proper, 

this court reviews a district court’s competency determination 

for clear error and for abuse of discretion. United States v. 

Moussaoui, 591 F.3d 263, 291 (4th Cir. 2010); United States v. 

Robinson, 404 F.3d 850, 856 (4th Cir. 2005); United States v. 

Cox, 964 F.2d 1431, 1433 (4th Cir. 1992). A district court must 

determine if “[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.” Dusky v. United 

States, 362 U.S. 402 (1960) (internal quotation marks omitted). 

The defendant shall be considered incompetent if the district 

court finds, “by a preponderance of the evidence that the 
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defendant is presently 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(d) (2006). 

“Not every manifestation of mental 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). Similarly, “neither low intelligence, mental 

deficiency, nor bizarre, volatile, and irrational behavior can 

be equated with mental incompetence to stand trial.” Id. In 

this instance, Wearing had the burden of establishing his 

incompetence. United States v. Robinson, 404 F.3d at 856. 

There is no merit to Wearing’s claim that under the 

circumstances, the Government should have had the burden of 

establishing that he was competent. 

We conclude that the record clearly supports the 

finding that Wearing was not under the influence of prescribed 

medications for bipolar disorder during the time period when he 

 * We conclude that Wearing’s claim that the district court 

should have been governed by our holding in United States v. 

Damon, 191 F.3d 561 (4th Cir. 1999) is without merit as that 

case is clearly distinguishable. 
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pled guilty. At the Rule 11 hearing, Wearing, under oath, told 

the court he was not taking any prescribed medications and that 

he was not under the care of a physician or a psychiatrist. 

Furthermore, Wearing’s medical records support the finding that 

Wearing had not taken his prescribed medications prior to or on 

the day he pled guilty. We also conclude that there was no 

error in the district court’s finding that Wearing failed to 

show he was not competent when he pled guilty. 

We are without jurisdiction to review the district 

court’s finding that the evidence did not support a downward 

departure. Our review of the record shows that the court 

understood its authority to depart and chose not to. United 

States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990).

As a general rule, claims of ineffective assistance of 

counsel should be raised in a 28 U.S.C.A. § 2255 (West Supp. 

2011) motion rather than on direct appeal unless the appellate 

record conclusively demonstrates ineffective assistance. United 

States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). The record 

currently before the court does not conclusively establish that 

Wearing’s trial counsel was ineffective at sentencing.

Accordingly, we affirm the amended judgment of 

conviction. We dispense with oral argument because the facts 

and legal contentions are adequately presented in the materials 
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before the court and argument would not aid the decisional 

process.

AFFIRMED