Filed: September 20, 1999

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-4378

(CR-95-45)

United States of America,

Plaintiff - Appellee,

versus

Marvin J. Damon,

Defendant - Appellant.

ORDER

The court amends its opinion filed September 17, 1999, as

follows:

On the cover sheet, section 6, line 1 -- the section is corrected to begin: “Remanded by published opinion. Judge Michael

wrote the majority opinion . . . .”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4378

MARVIN J. DAMON,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

(CR-95-45)

Argued: May 7, 1999

Decided: September 17, 1999

Before WILLIAMS, MICHAEL, and KING,

Circuit Judges.

_________________________________________________________________

Remanded by published opinion. Judge Michael wrote the

majority opinion, in which Judge King joined. Judge Williams wrote

a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Stephen Clayton Gordon, FEDERAL PUBLIC

DEFENDER'S OFFICE, Raleigh, North Carolina, for Appellant.

David John Novak, Assistant United States Attorney, OFFICE OF

THE UNITED STATES ATTORNEY, Richmond, Virginia, for

Appellee. ON BRIEF: William Arthur Webb, Federal Public
Defender, G. Alan DuBois, Assistant Federal Public Defender,

Raleigh, North Carolina, for Appellant. Helen F. Fahey, United States

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

During Marvin Damon's Rule 11 hearing on the entry of his guilty

plea, he told the district court that he was under the influence of an

antidepressant drug. The court did not make any inquiry about the

drug's effect on Damon, but went on to accept his plea. Damon now

challenges the validity of his plea, arguing that the district court had

a duty to follow up on the drug ingestion issue in order to determine

whether he was competent to plead. We agree. We decline to order

that Damon's guilty plea be vacated, however. Instead, we remand for

the district court to determine (if it can) whether any drug taken by

Damon had the capacity to impair his judgment sufficiently to render

him incapable of entering a knowing and voluntary plea.

I.

According to the government, Damon served as an"enforcer" for

a heroin distribution ring based in Richmond, Virginia. On October

16, 1995, he was charged (in a third superseding indictment) with various offenses relating to his role in the drug conspiracy, including

murder in furtherance of a continuing criminal enterprise in violation

of 21 U.S.C. § 848(e)(1)(A). The government filed a notice of intent

to seek the death penalty. Thereafter, on January 10, 1996, Damon

entered into a plea agreement with the government. He agreed to

plead guilty to the federal charge of murder in furtherance of a continuing criminal enterprise and to two additional counts of murder in

state court. In exchange for his guilty pleas, the federal government

and the Commonwealth of Virginia agreed that they would not seek

the death penalty.

On the evening of January 10, 1996, within hours of signing the

plea agreement, Damon attempted suicide by trying to hang himself

 2
in his jail cell. After he was found unconscious, he was rushed to the

hospital, where he was treated and placed under psychiatric observation. He was released from the hospital on January 13, 1996. Later

that day, he was taken to district court to enter his guilty plea. When

questioned by the court, however, Damon said that he had been under

a lot of "pressure and stress" when he signed the plea agreement and

that he no longer wanted to plead guilty. He explained that after signing the agreement, "I realized I probably did wrong and that's why

I tried to hang myself that night." The district court accepted this

explanation and set a date for trial.

Three days later, on January 16, 1996, Damon returned to court.

Government counsel explained that Damon had changed his mind and

once again wished to accept the plea agreement. The court then began

the inquiry of Damon that is required before a guilty plea can be

accepted. See Fed. R. Crim. P. 11. The following exchange took place

during the court's questioning:

THE COURT: Have you recently been treated for any kind

of mental illness or addiction to narcotic drugs?

THE DEFENDANT: I haven't been treated.

THE COURT: Are you currently under the influence of any

kind of drug or medication or alcoholic beverage?

THE DEFENDANT: Yes, sir.

THE COURT: What's the nature of the drug?

THE DEFENDANT: Depression.

THE COURT: I can't hear you. You have to speak up.

THE DEFENDANT: Depression.

THE COURT: Antidepressant?

THE DEFENDANT: From the suicide attempt.

 3
THE COURT: Do you know anything about the nature of

the drug?

MR. ELIADES [counsel for Damon]: Your Honor, all we

have for you is the hospital's records with regards to treatment. I think there is a name of a medication on it, Elantin,

or something of that nature.1 And it shows -- "impaired

judgment" is in the notes, as well as other things. We can

provide these to the Court.

THE COURT: All right. Now, Mr. Damon, have you had an

adequate opportunity to receive and review a copy of the

indictment, the charges against you?

THE DEFENDANT: Yes, sir.

The court did not ask any follow-up questions about whether the

medication had any actual effect on Damon's ability to enter a competent and voluntary plea. Instead, the court continued with the usual

questions, asking Damon whether he understood the charges against

him, whether he was satisfied with the efforts of his lawyers, whether

he understood the terms of the plea agreement, and whether he understood the consequences of his guilty plea. Damon answered these

questions in the affirmative. The court also asked his lawyers if they

knew of any reason why Damon would not be competent to enter a

plea of guilty. The lawyers said they knew of no such reason. The

court then accepted Damon's guilty plea, finding that he was competent to enter a plea and that he understood the nature of the charges

and the consequences of his plea. On April 30, 1996, the district court

sentenced Damon to life imprisonment. Damon made a pro se motion

to vacate his plea on May 9, 1996, contending, among other things,

that he lacked the capacity to make an intelligent plea because of the

_________________________________________________________________

1 According to medical records filed by Damon pro se, he was prescribed two drugs, Desyrel and Ativan. These records were not filed in

district court until well after Damon's plea hearing and the denial of his

motion to vacate his plea. Specifically, they were filed in connection

with a (denied) motion to correct or modify the record that was made

after the notice of appeal. Additional medical records are included in the

pro se supplemental appendix Damon filed in this court.

 4
medication. The district court denied the motion the next day without

comment. Damon immediately appealed his conviction and sentence,

challenging only the validity of his guilty plea.

II.

A.

Damon contends that the district court had a duty, when informed

that he was under the influence of medication, to make further inquiry

into his competence to plead guilty. Otherwise, Damon argues, the

court could not determine that his plea was knowing and voluntary.

We agree.2 Before a court may accept a guilty plea, it must ensure that

the defendant is competent to enter the plea. See Godinez v. Moran,

509 U.S. 389, 400 (1993). The court must also determine that the plea

is knowing and voluntary. See id.

Rule 11 of the Federal Rules of Criminal Procedure was adopted

to standardize the process for accepting guilty pleas in federal court.

This rule provides that the court must personally inform the defendant

of, and ensure that he understands, the nature of the charges against

him and the consequences of his guilty plea. Rule 11 has two principal purposes. First, it "assist[s] the district judge in making the constitutionally required determination that a defendant's guilty plea is truly

voluntary." McCarthy v. United States, 394 U.S. 459, 465 (1969).

Second, it "produce[s] a complete record at the time the plea is

entered of the factors relevant to this voluntariness determination." Id.

_________________________________________________________________

2 "We generally review de novo the adequacy of a guilty plea, but in

the Rule 11 context, violations are evaluated under a harmless error standard." United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995) (citations

omitted). The government suggests that Damon is, in effect, challenging

the district court's denial of his motion to vacate his plea. We review the

denial of such a motion for abuse of discretion. United States v. Wilson,

81 F.3d 1300, 1305 (4th Cir. 1996). Although our analysis focuses on the

underlying defects in the plea hearing, we believe those defects were sufficiently serious that the district court erred under either a de novo or an

abuse of discretion standard. Of course, as we explain later, the court's

insufficient inquiry may still be harmless error.

 5
Two of our sister circuits require additional inquiry by a district

court once a defendant seeking to enter a guilty plea has stated that

he is under the influence of drugs. In United States v. Cole, 813 F.2d

43, 47 (3d Cir. 1987), the Third Circuit held that "[w]here significant

evidence does come to the attention of the district court that defendant

has recently taken drugs, the court has the obligation to inquire further

before determining that a competency hearing is not necessary." That

court elaborated: "Rule 11 counsels a district court to make further

inquiry into a defendant's competence to enter a guilty plea once the

court has been informed that the defendant has recently ingested

drugs or other substances capable of impairing his ability to make a

knowing and intelligent waiver of his constitutional rights." Id. at 46.

The First Circuit reached the same conclusion in United States v.

Parra-Ibanez, 936 F.2d 588 (1st Cir. 1991). That court explained:

the district court had reason to suspect that the medications

taken by the accused might impinge upon the accused's

capacity to enter a voluntary and intelligent plea. At the outset of the Rule 11 hearing, Parra confirmed the district

judge's understanding that he had "been under the care of a

doctor for a mental or emotional condition." And Parra

advised the judge that in that connection he had, within the

previous twenty-four hours, taken three medications--

Ativan, Halcion and Restoril. Parra affirmed that, as the

judge supposed, "Ativan . . . is . . . a drug to control your

nerves or something." Although the judge's further questions did elicit (1) from Parra assurances that he understood

the proceedings and knew that a maximum sentence of forty

years could be imposed, and (2) from defense counsel and

prosecutor their joint assurance that appellant was competent to plead guilty, the judge did not inquire what dosages

of Ativan, Halcion and Restoril Parra had ingested and what

effects, if any, such medications might be likely to have on

Parra's clear-headedness. The judge, though plainly making

a substantial inquiry, did not probe deeply enough.

Id. at 595-96. The First Circuit recently reaffirmed this standard. See

Miranda-Gonzalez v. United States, 181 F.3d 164, No. 97-1200, 1999

WL 420836, at *2-3 (1st Cir. Jun. 28, 1999) (concluding that it was

unnecessary for district court to inquire further about defendant's

 6
recent ingestion of drugs when the court had already asked detailed

follow-up questions required by Parra Ibanez about the type of drugs

taken, the frequency and quantity of doses, and their effects on defendant's cognitive functions).3

Here, as in Parra-Ibanez, the district court was put on direct notice

that Damon could be under the influence of a drug while entering his

plea. Damon told the court that he was "currently" under the influence

of antidepressant medication. His lawyer said he thought the name of

the drug was Elantin "or something of that nature." The lawyer added

that "impaired judgment" was listed as a side effect. This information

should have raised a red flag for the district court as to Damon's competence to plead guilty. However, the court simply continued with the

routine Rule 11 colloquy without following up on the drug information or making any further inquiry into Damon's mental state or the

possibility that his judgment could be impaired.

The plea colloquy required by Rule 11 must be conducted with

some flexibility. If a defendant's response to a court's question indicates the need for clarification, follow-up questions must be asked.

Otherwise, the Rule 11 colloquy would be reduced to a formalistic ritual, stripped of its purpose. Thus, when an answer raises questions

about the defendant's state of mind, the court must broaden its inquiry

to satisfy itself that the plea is being made knowingly and voluntarily.

The district court erred when it failed to inquire about what effect, if

any, Damon's medication had on his ability to make a voluntary plea

and to understand the consequences.

Although the district court erred by failing to conduct any further

inquiry into Damon's mental state as the result of medication, that

error may be harmless. We recognize, of course, that the usual remedy for a Rule 11 violation involving a question of competence or

voluntariness is to vacate the defendant's guilty plea. See McCarthy,

394 U.S. at 463-64. This is because of the difficulty in conducting a

retrospective examination of a defendant's state of mind when he

_________________________________________________________________

3 Cf. United States v. Dalman, 994 F.2d 537, 539 (8th Cir. 1993) (concluding that district court in Rule 11 proceeding had no duty to make further inquiries about defendant's medication when nothing in the record

suggested that defendant was not "fully in possession of his faculties").

 7
entered his plea. See id. at 469-71. However, we are persuaded that

Parra-Ibanez (see quote below) offers a sensible and fair alternative

to the immediate vacation of Damon's plea. In short, this will require

the district court on remand to determine whether the medication

Damon took, based on objective data about its nature and effect, had

the capability to produce a sufficient effect on his mental faculties to

render him incompetent to enter a guilty plea. See United States v.

Truglio, 493 F.2d 574, 578 (4th Cir. 1974) (holding that a defendant

claiming that he was incompetent to plead guilty must show "that his

mental faculties were so impaired by drugs when he pleaded that he

was incapable of full understanding and appreciation of the charges

against him, of comprehending his constitutional rights and of realizing the consequences of his plea") (citation omitted). As the First Circuit explained more fully in Parra-Ibanez:

[T]he traditional concerns about ex post determinations of a

defendant's subjective mental state, which have frequently

led appellate courts to vacate deficient pleas, do not apply

here. It is quite possible, even at this relatively late stage, to

conduct an inquiry that would consider (1) the properties of

Ativan, Halcion, and Restoril, taken individually and in

combination, and (2) the dosages and schedule of Parra's

particular regime. That is, a determination as to whether

Parra's medications could have significantly interfered with

his mental functioning at the time of entering his plea could

be made on the basis of objective facts and scientific testimony, without venturing to reconstruct the actual effect of

the regimen on Parra's then state of mind. If it is demonstrated that Parra's medicinal regimen did not have the

potential to produce a significant mind-altering effect, then

the Rule 11 violation could be deemed harmless and the

guilty plea left undisturbed. If, on the other hand, it is found

that the regimen did have the potential significantly to alter

the mind, then the plea could be vacated at that point.

936 F.2d at 596-97 (citations omitted).

We therefore remand to the district court for a determination of

whether Damon's medication had the capability to affect his mental

faculties sufficiently to render him incompetent to enter a guilty plea.

 8
Although we leave the details of the inquiry to the district court, we

expect, for example, that the court will want to examine the medical

records to determine the type, amount, and schedule of medication

taken by Damon before he entered his plea. If Damon's medication

did not have the capability of undermining the validity of his guilty

plea, the plea may stand. Otherwise, it should be vacated.

B.

The dissent has not made a convincing case for avoiding a remand.

First, the dissent is too quick to excuse the inadequate Rule 11 colloquy. It concludes that there was no reason for the district court to

inquire further about Damon's medication because there was no evidence to indicate that he was not in full possession of his faculties.

That conclusion, however, is based on a record that is incomplete

because the district court failed to make sufficient inquiry. When the

court was warned that Damon was on medication that could impair

judgment, it should have probed for the relevant facts about his

medicinal regimen.

Second, the dissent's attempts to distinguish Parra-Ibanez and

Cole do not hold up. It argues that Parra-Ibanez is inapplicable

because the defendant there had a history of psychological problems.

However, that history included attempted suicide, and Damon likewise tried to take his own life just six days before his Rule 11 hearing.

Moreover, three days before the hearing Damon discussed his suicide

attempt with the district court and told the court that he had been

under a lot of pressure and stress. The district court was therefore on

notice that Damon's state of mind could be a factor at any Rule 11

hearing. Cole and this case are much the same. For whatever reason,

both district courts (there and here) erroneously dropped the subject

of medication after the defendants disclosed recent drug use.

Finally, our decision is not inconsistent with Truglio, a case in

which we emphasized the need for a searching Rule 11 inquiry. See

Truglio, 493 F.2d at 579. Specifically, there is nothing in Truglio that

is inconsistent with our admonition that once a district court is

advised in a Rule 11 hearing that the defendant is taking medication

that could affect his mental functions, the court should pursue the subject with the defendant and counsel to determine whether the defen-

 9
dant is competent to plead. That failure to follow up in Damon's case

requires us to order a remand for the inquiry we discuss above.

REMANDED

WILLIAMS, Circuit Judge, dissenting:

After learning that he would be sentenced to life in prison, Marvin

Damon, who had previously confessed to committing a total of fifteen

murders in furtherance of a Continuing Criminal Enterprise (CCE),

see 21 U.S.C.A. § 848(e) (West Supp. 1999), moved to vacate his

plea agreement (to one count of murder in furtherance of a CCE) on

the ground that he was not in control of his faculties at the time he

entered his plea due to the influence of the medication that he had

taken earlier. The district court, which had repeatedly observed and

addressed Damon during the course of the preceding year, conducted

an extensive Rule 11 colloquy with Damon to ensure that his plea was

freely and voluntarily entered. Notwithstanding the fact that nothing

in the record suggests that Damon was not fully in possession of his

faculties, the majority today holds that the district court's failure to

make further inquires about the medication Damon took earlier rendered the Rule 11 hearing inadequate.

In so holding, the majority completely ignores the test established

by this Court in United States v. Truglio, 493 F.2d 574 (4th Cir.

1974), for determining whether drugs impaired a defendant's ability

to plead guilty, and it instead adopts (and then applies) the rigid tests

established in United States v. Cole, 813 F.2d 43 (3d Cir. 1987), and

United States v. Parra-Ibanez, 936 F.2d 588 (1st Cir. 1991) -- two

cases that are easily distinguishable from the instant case. Because

Damon has failed to demonstrate that his mental faculties were

impaired by the medication he took prior to pleading guilty, as this

Court's precedent requires, I respectfully dissent.

I.

The sole issue raised in this appeal is whether the district court conducted an adequate inquiry pursuant to Rule 11 of the Federal Rules

of Criminal Procedure when it concluded that Damon was competent

 10
to plead guilty and that his plea was knowingly and voluntarily

entered. Accepting a guilty plea from a defendant when he is legally

incompetent is, of course, a violation of due process. See Roach v.

Martin, 757 F.2d 1463, 1480 (4th Cir. 1985); see also Drope v.

Missouri, 420 U.S. 162, 171-72 (1975) (noting that competency is

essential to a fair trial); Pate v. Robinson, 383 U.S. 375, 378 (1966)

(holding that the conviction of an incompetent defendant violates due

process). The test for mental competence is 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." Dusky v. United States, 362 U.S. 402, 402 (1960).1

On appeal, Damon alleges that he was not in control of his faculties

at the time he entered his plea due to the influence of the medication

he had taken earlier. In order to prevail on this point under Dusky,

Damon must demonstrate "that his mental faculties were so impaired

by drugs when he pleaded that he was incapable of full understanding

and appreciation of the charges against him, of comprehending his

constitutional rights and of realizing the consequences of his plea."

United States v. Truglio, 493 F.2d 574, 578 (4th Cir. 1974) (internal

quotation marks omitted). For the reasons that follow, I do not believe

that Damon has met this burden.

Although the district court did not verbally ascertain the specific

dosage of Ativan and Desyrel that Damon had taken earlier, the district court's failure to further explore this issue did not render the Rule

11 hearing inadequate. As required by this Court in Truglio, the district court, after learning that Damon had taken medication during his

stay at the hospital, asked Damon whether he understood (1) the

charges against him, (2) the constitutional rights he was waiving by

pleading guilty, (3) the terms of his Plea Agreement, and (4) the consequences of his guilty plea. Damon answered each question in the

affirmative and in a coherent fashion. Damon also told the district

court that he was satisfied with his attorneys and that he was in fact

_________________________________________________________________

1 Although Dusky v. United States, 362 U.S. 402 (1960), dealt with a

defendant's competency to stand trial, the standard for competence to

enter a plea of guilty is the same as that for competence to stand trial.

See Godinez v. Moran, 509 U.S. 389 (1993).

 11
guilty of the offense to which he pled guilty. The district court also

asked Damon's lawyers whether they had any reason to question

Damon's competence to plead guilty. Although aware that Damon

had taken some medication earlier, his lawyers, both of whom were

highly experienced due to the fact that Damon was subject to the

death penalty, answered no. See Blackledge v. Allison, 431 U.S. 63,

73 74 (1977) (noting that the representations of the defendant's lawyers at a Rule 11 hearing constitute a formidable barrier in a subsequent challenge to the defendant's competency); United States v.

Wilson, 81 F.3d 1300, 1306 (4th Cir. 1996) (noting that "competency

of counsel certainly is a strong component of a properly-conducted

Rule 11 hearing").

Based upon Damon's answers during the Rule 11 hearing and the

representations of his lawyers, it is clear that he was competent to

stand trial and thus to plead guilty and that he entered an informed,

intelligent, and voluntary plea of guilty. See, e.g., Roach, 757 F.2d at

1480; Shaw v. Martin, 733 F.2d 304, 314-15 (4th Cir. 1984). There

is absolutely no evidence in the record to indicate that Damon was not

in full possession of his faculties at the time of the Rule 11 hearing.

Thus, there was no reason for the district court, which had handled

Damon's case throughout the preceding year and was in the best position to judge Damon's competence at the time of the Rule 11 hearing,

to conduct any further inquiry regarding the medication that Damon

had taken earlier. Accord United States v. Dalman, 994 F.2d 537, 539

(8th Cir. 1993) (holding that defendant who was taking four different

types of medications was competent to enter plea of guilty, and district court was under no obligation to question him further concerning

the nature of the medications and their potential effects upon his decision to plead guilty or his ability to understand the plea proceedings,

because he understood the questions asked by the district court and

responded in a coherent fashion).

In reaching the opposite conclusion, the majority mistakenly relies

on the First Circuit's decision in United States v. Parra-Ibanez, 936

F.2d 588 (1st Cir. 1991), and the Third Circuit's decision in United

States v. Cole, 813 F.2d 43 (3d Cir. 1987).2 Both cases are easily dis-

_________________________________________________________________

2 Damon also relies on the Second Circuit's decision in United States

v. Rossillo, 853 F.2d 1062 (2d Cir. 1988), which the majority, in my

 12
tinguishable from the instant case. In Parra-Ibanez, the defendant,

who had a history of psychiatric treatment and drug abuse, told the

district court during the Rule 11 hearing that he had taken three different types of medication within the past 24 hours. See 936 F.3d at 591.

After pleading guilty, the defendant began to exhibit additional psychological problems. See id. at 592. Under these circumstances, the

First Circuit ruled that the district court should have held an evidentiary hearing on the effects of the medication. See id. at 596-98. None

of the concerns raised by the First Circuit in Parra-Ibanez are present

here. Damon had no past history of mental illness and, unlike the

defendant in Parra-Ibanez, there is absolutely no evidence that the

medication had any effect on Damon during the Rule 11 hearing or

thereafter. In Cole, the defendant stated during the Rule 11 hearing

that he had used drugs within the last 12 hours. See 813 F.2d at 44.

The district court, however, misunderstood the defendant and was

under the impression that he denied any drug use during the Rule 11

hearing. See id. at 46-47. Thus, the facts in Cole are also very different from the facts in the instant case.

In the end, I am convinced that the district court adequately considered Damon's competency to plead guilty. Damon attempted to commit suicide after signing his plea agreement. Thus, the minor amounts

of medication that he later took could not have affected his decision

to plead guilty. Moreover, based upon his own representations (and

those of his attorneys), there is no evidence that Damon lacked the

ability to consult with his lawyers with a reasonable degree of rational

understanding during the Rule 11 hearing or that he did not understand the nature of the proceedings against him. See Dusky, 362 U.S.

at 402. Damon's actions after pleading guilty support this conclusion.

_________________________________________________________________

opinion, wisely avoids. In Rossillo, the Second Circuit held that once the

district court raised the issue of intoxicants and received an ambiguous

response, the district court's failure to obtain a clear response from the

defendant on the issue rendered the Rule 11 hearing fatally inadequate

notwithstanding the fact that the record was devoid of any evidence that

the defendant was incompetent. See id. at 1067. The decision in Rossillo

was decided over a persuasive dissent. See id. at 1067-71 (Van Graafeiland, J., dissenting). In fact, the Second Circuit has since read the panel's

decision in Rossillo very narrowly. See United States v. Lora, 895 F.2d

878, 881 (2d Cir. 1990).

 13
Three days after the Rule 11 hearing, Damon appeared in the Circuit

Court of the City of Richmond and pleaded guilty to two additional

counts of murder. At that hearing, the Circuit Court judge specifically

found Damon's plea to be knowing and voluntary. Thereafter, Damon

admitted during his debriefing with DEA agents that he had actually

committed a total of fifteen murders. Tellingly, it was not until three

months after the Rule 11 hearing -- at sentencing, when he learned

that he would receive a life sentence -- that Damon suddenly asserted

that he was not competent during the Rule 11 hearing.

As this Court recently noted, "it is essential to an orderly working

of the criminal justice system that guilty pleas tendered and accepted

in conformity with Rule 11 . . . be presumed final." United States v.

Sparks, 67 F.3d 1145, 1154 (4th Cir. 1995). Here, the district court

conducted the Rule 11 hearing precisely as this Court required in

Truglio. Accordingly, Damon's guilty plea should be treated as final.

II.

In sum, I believe that the district court properly ensured during the

Rule 11 hearing that Damon's plea was freely and voluntarily entered.

Accordingly, I would affirm.

 14