UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-4925

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CARL RAY MCNEIL, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Wilmington. Terrence W. Boyle, District Judge. (7:02-cr-00098-BO-1)

Submitted: February 24, 2022 Decided: March 7, 2022

Before NIEMEYER, MOTZ, and HARRIS, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

ON BRIEF: Raymond C. Tarlton, TARLTON POLK, PLLC, Raleigh, North Carolina, 

for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant 

United States Attorney, Lucy Partain Brown, Assistant United States Attorney, OFFICE 

OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Carl Ray McNeil, Jr., pled guilty to discharging a firearm in furtherance of a crime 

of violence, in violation of 18 U.S.C. § 924(c)(1), and being a felon in possession of a 

firearm, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced McNeil to an 

aggregate sentence of 447 months’ imprisonment and ordered him to pay $92,568.73 in 

restitution. After granting McNeil’s 28 U.S.C. § 2255 motion to challenge his designation 

as an armed career criminal,1 the district court resentenced McNeil to 382 months’ 

imprisonment, and while it omitted restitution from the initial judgment, reentered the 

restitution award in an amended judgment. On appeal, we affirmed the sentence of 

imprisonment and dismissed McNeil’s appeal of the restitution order. United States v. 

McNeil, 707 F. App’x 764, 765-66 (4th Cir. 2017) (No. 16-4863).

The district court then granted a second § 2255 motion, reentering the judgment so 

McNeil could appeal the award of restitution. McNeil also contends that his guilty plea 

was not knowing and voluntary, that he was not competent to plead guilty, and that the 

district court erred in imposing conditions of supervised release that it did not announce at 

the resentencing hearing.2

 We affirm McNeil’s convictions, vacate his sentence, and 

remand for resentencing.

1 See Armed Career Criminal Act, 18 U.S.C. § 924(e).

2 McNeil, in the issues for review section of his brief, argues that robbery of a postal 

matter under 18 U.S.C. § 2114 is not a crime of violence for purposes of his § 924(c) 

conviction. Yet he cites no authority for this proposition nor addresses it in the argument 

section of his brief. This conclusory argument cannot preserve appellate review of this 

claim. See United States v. Arbaugh, 951 F.3d 167, 174 n.2 (4th Cir. 2020).

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McNeil contends that his plea was not knowing and voluntary because the district 

court failed to advise him that the Government had to prove that he knew was a felon in 

order to sustain a conviction under § 922(g). Because McNeil did not preserve any error 

in the plea proceedings, we review the adequacy of the plea colloquy for plain error. United 

States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014). To establish plain error, McNeil “must 

show that: (1) an error occurred; (2) the error was plain; and (3) the error affected his 

substantial rights.” United States v. Lockhart, 947 F.3d 187, 191 (4th Cir. 2020) (en banc). 

In the guilty plea context, a defendant can establish that an error affected his substantial 

rights by showing “a reasonable probability that, but for the error, he would not have 

entered the plea.” United States v. Davila, 569 U.S. 597, 608 (2013) (internal quotation 

marks omitted). Even if McNeil makes this showing, we will correct the error only if it 

“seriously affects the fairness, integrity or public reputation of judicial proceedings.” 

Henderson v. United States, 568 U.S. 266, 272 (2013) (cleaned up).

“Before accepting a guilty plea, a trial court, through colloquy with the defendant, 

must ensure that the defendant understands the nature of the charges to which the plea is 

offered.” United States v. Williams, 811 F.3d 621, 622 (4th Cir. 2016); see Fed. R. Crim. 

P. 11(b)(1)(G). While this case was pending on appeal, the Supreme Court held that in 

§ 922(g) cases, “the Government must prove both that the defendant knew he possessed a 

firearm and that he knew he belonged to the relevant category of persons barred from 

possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).

In conducting the Rule 11 colloquy, the district court failed to fully advise McNeil 

of the elements of the § 922(g)(1) charge because it did not advise him that the Government 

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had to prove that he knew he was a felon when he possessed the firearm. Thus, the district 

court committed Rehaif error. However, “[i]n felon-in-possession cases, a Rehaif error is 

not a basis for plain-error relief unless the defendant first makes a sufficient argument or 

representation on appeal that he would have presented evidence at trial that he did not in 

fact know he was a felon.” Greer v. United States, 141 S. Ct. 2090, 2100 (2021).

McNeil tries to make this showing by arguing that he served little time in prison and 

would not have understood that he was a felon. But as the Supreme Court explained in 

Greer:

In a felon-in-possession case where the defendant was in fact a felon when 

he possessed firearms, the defendant faces an uphill climb in trying to satisfy 

the substantial-rights prong of the plain-error test based on an argument that 

he did not know he was a felon. The reason is simple: If a person is a felon, 

he ordinarily knows he is a felon. Felony status is simply not the kind of 

thing that one forgets.

Id. at 2097 (cleaned up).

McNeil had sustained several adult felony convictions prior to committing his 

§ 922(g) offense. He served a three-year suspended sentence, showing that he knew that 

his prior robberies were punishable by more than one year in prison. Thus, there is not a 

reasonable probability that, but for the district court’s failure to fully advise McNeil of the 

mens rea elements of § 922(g), the outcome of the proceeding would have been different.

McNeil argues that he was not competent to plead guilty and that the district court 

erred in failing to sua sponte order a competency hearing. We apply the plain error standard 

“when a defendant did not raise competency issues while represented by counsel.” United 

States v. Ziegler, 1 F.4th 219, 228 (4th Cir. 2021). Without a motion from either party, a 

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district court must sua sponte order 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). “Whether reasonable cause exists is a question left to the sound 

discretion of the district court.” United States v. Bernard, 708 F.3d 583, 592 (4th Cir. 

2013) (internal quotation marks omitted). “Reasonable cause may be established through 

evidence of irrational behavior, the defendant’s demeanor at trial, and medical opinions 

concerning the defendant’s competence.” Id. at 592-93 (internal quotation marks omitted).

The district court did not plainly err in declining to sua sponte order a competency 

hearing. As soon as McNeil entered a notice of an insanity defense, the court ordered a 

psychological evaluation. The evaluator concluded that McNeil was competent to proceed, 

and McNeil did not challenge that conclusion below. Moreover, nothing in the transcript 

of the plea colloquy or sentencing hearing reveals any cause to believe that McNeil was 

not competent during the proceedings. Therefore, we affirm McNeil’s convictions.

Turning to McNeil’s sentencing challenges, the parties rightfully argue that the 

district court erred in imposing discretionary conditions of supervised release in the written 

judgment that it did not announce at the resentencing hearing. We review de novo whether 

the sentence imposed in the written judgment matches the district court’s oral 

pronouncement of the sentence. United States v. Rogers, 961 F.3d 291, 295-96 (4th Cir. 

2020). In Rogers, we vacated the defendant’s sentence and remanded to the district court 

based on the court’s failure to orally announce the standard, but discretionary, conditions 

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of supervision included in the written judgment. 961 F.3d at 296-301. We explained that 

“the requirement that a district court expressly adopt a written list of proposed conditions 

is not a meaningless formality: It is a critical part of the defendant’s right to be present at 

sentencing.” Id. at 300 (internal quotation marks omitted). Although the district court did 

not have the benefit of Rogers at the time of sentencing, this error requires that the district 

court conduct a resentencing hearing. See United States v. Singletary, 984 F.3d 341, 346-

47 & n.4 (4th Cir. 2021). Thus, we need not reach McNeil’s challenge to the restitution 

order, and we express no opinion on the merits of his challenge to it.

Therefore, we affirm McNeil’s convictions, vacate his sentence, and remand for 

resentencing. We dispense with oral argument because the facts and legal contentions are 

adequately presented in the materials before this court and argument would not aid the 

decisional process. 

AFFIRMED IN PART, 

VACATED IN PART, AND REMANDED

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