United States of America v. Winston Mendez-Colon

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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. May-
Parker, 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Unpublished opinions are not binding precedent in this circuit.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, Mendez-
Colon 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

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