UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4370

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

WINSTON MENDEZ-COLON,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Dever III, 

District Judge. (5:08-cr-00389-D-2)

Submitted: February 14, 2011 Decided: March 18, 2011

Before MOTZ, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Richard Croutharmel, Raleigh, North Carolina, for Appellant. 

George E.B. Holding, United States Attorney, Jennifer P. MayParker, Yvonne V. Watford-McKinney, Assistant United States 

Attorneys, Raleigh, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Winston Mendez-Colon and a co-defendant were charged 

in a two-count indictment for assaults against two other 

inmates that took place in the Federal Correctional Institution 

in Butner, North Carolina. Count One alleged that Mendez-Colon 

and his co-defendant aided and abetted one another and knowingly 

assaulted another person with a dangerous weapon, in violation 

of 18 U.S.C. §§ 113(a)(3) and 2 (2006). Count Two alleged that 

Mendez-Colon and his co-defendant knowingly assaulted another 

person with a dangerous weapon, in violation of 18 U.S.C. 

§§ 113(a)(3) and 2. The Government dismissed Count One, 

Mendez-Colon pleaded guilty to Count Two, and the district court 

sentenced him to forty-one months’ imprisonment. Mendez-Colon 

noted a timely appeal.

On appeal, Mendez-Colon asserts three claims: (1) 

that the indictment was fatally defective because it failed to 

name the victim in either count; (2) that the district court 

plainly and reversibly erred in finding Mendez-Colon competent 

to proceed; and (3) that the district court lacked a factual 

basis to accept Mendez-Colon’s guilty plea. Finding no 

reversible error, we affirm.

Mendez-Colon argues that because neither count of the 

indictment named a specific victim, “it is unclear as to which 

count is for which victim or if both counts are for both 
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victims.” He asserts that the ambiguity made it difficult for 

him to mount an adequate defense and bars him from pleading 

double jeopardy in the event of a future prosecution. 

We review a challenge to the sufficiency of an 

indictment raised for the first time on appeal for plain error. 

See United States v. Cotton, 535 U.S. 625, 631 (2002). 

Accordingly, Mendez-Colon must identify an error that is plain 

and that affects his substantial rights. United States v. 

Olano, 507 U.S. 725, 732 (1993). We will not correct a plain 

error unless “a miscarriage of justice would otherwise result,” 

meaning that “the error seriously affect[s] the fairness, 

integrity, or public reputation of the judicial proceedings.” 

Id. at 736 (internal quotation marks omitted).

An indictment must contain elements of the offense 

charged, fairly inform the defendant of the charge, and enable 

the defendant to plead double jeopardy as a defense to future 

prosecutions for the same offense. See United States v. 

Resendiz-Ponce, 549 U.S. 102, 108 (2007); United States v. 

Kingrea, 573 F.3d 186, 191 (4th Cir. 2009). In order to convict 

Mendez-Colon, the Government was required to prove “(1) an 

assault, (2) with a dangerous weapon, (3) with intent to do 

bodily harm.” United States v. Sturgis, 48 F.3d 784, 786 

(4th Cir. 1995) (concerning 18 U.S.C. § 113(c) (1994), now 

codified as § 113(a)(3) (2006)). 
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We conclude that the indictment alleged the elements 

of the offense and, by identifying the date and location of the 

assault, did so with sufficient specificity to put Mendez-Colon 

on notice as to the conduct at issue. See United States v. 

Loayza, 107 F.3d 257, 260-61 (4th Cir. 1997) (finding 

indictment, despite failure to name the victims, described 

fraudulent scheme with sufficient detail to allow defendant to 

mount a defense). Moreover, we believe that that the 

indictment’s failure to name the victims will not preclude 

Mendez-Colon from raising double jeopardy as a defense to any 

future prosecutions for the assaults. In raising a double 

jeopardy defense, Mendez-Colon would be permitted to rely on the 

record as a whole, not just on the indictment. See Russell v. 

United States, 369 U.S. 749, 764 (1962); United States v. McHan, 

966 F.2d 134, 138 (4th Cir. 1992). Here, the record makes it 

clear the charged conduct related to the assaults of the two 

inmates and specifies the count relating to each inmate. 

Mendez-Colon next argues that the district court 

committed plain error in finding that Mendez-Colon was competent 

to proceed with the Fed. R. Crim. P. 11 colloquy. He contends 

that the district court rejected Mendez-Colon’s plea as to Count 

One because it “believed he was incompetent to understand what 

he was pleading to with regard to that count.” He reasons that 

if he lacked capacity to plead to Count One, he lacked capacity 
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to plead to Count Two as well. We disagree with Mendez-Colon’s 

characterization of the district court’s decision.

Before accepting a guilty plea, a district court “must 

ensure that the defendant is competent to enter the plea.” 

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

(internal quotation marks omitted). A district court fulfills 

this responsibility by determining 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.’” Id. (quoting Dusky v. United States, 362 U.S. 

402, 402 (1960) (per curiam)). “A district court’s decisions on 

competency . . . are reviewed for an abuse of discretion.” Id.

Mendez-Colon received two separate competency 

examinations in this proceeding, and both found him competent to 

stand trial. Although Mendez-Colon points to the district 

court’s rejection of his plea to Count One and asserts that it 

was on competence grounds, the contention is belied by the 

record. It is clear that the district court declined to accept 

Mendez-Colon’s plea to Count One because Mendez-Colon 

unequivocally asserted his innocence of the assault charge in 

that count. We therefore hold that the district court did not 

abuse its discretion in finding Mendez-Colon competent to enter 

a guilty plea to Count Two.
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Finally, Mendez-Colon argues that the district court 

lacked a factual basis to accept his guilty plea because he 

offered a legal justification for his act. He asserts that he 

raised self-defense and that the Government failed to rebut this 

contention.

Because Mendez-Colon did not move to withdraw his 

guilty plea or otherwise object during the Rule 11 colloquy, 

this court reviews this issue for plain error. See United 

States v. Vonn, 535 U.S. 55, 59 (2002); United States v. 

Massenburg, 564 F.3d 337, 342 (4th Cir. 2009). In determining 

whether a factual basis exists before accepting a plea of 

guilty, a district court “possesses wide discretion, and it need 

only be subjectively satisfied that there is a sufficient 

factual basis for a conclusion that the defendant committed all 

of the elements of the offense.” United States v. Ketchum, 

550 F.3d 363, 366 (4th Cir. 2008). 

We find that Mendez-Colon’s factual admission during 

the plea hearing were fully consistent with the assault charged 

in Count Two. Moreover, based on his own statements, MendezColon is unable to raise a credible claim of self-defense 

because he is unable to show that he was under an unlawful and 

present threat of death or serious injury, nor can he show that 

he did not place himself in a situation where he would be forced 
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to defend himself. See United States v. Mooney, 497 F.3d 397, 

406 (4th Cir. 2007).

Accordingly, we affirm the district court’s judgment. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

AFFIRMED