FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                        No. 13-50164
                 Plaintiff-Appellee,
                                                    D.C. No.
                     v.                          2:11-cr-00358-
                                                    MMM-1
 HUEY JACQUE CARTER, AKA Baby
 Huey, AKA Reesio,
              Defendant-Appellant.                  OPINION


        Appeal from the United States District Court
           for the Central District of California
       Margaret M. Morrow, District Judge, Presiding

                   Argued and Submitted
           February 4, 2015—Pasadena, California

                       Filed July 28, 2015

          Before: Michael J. Melloy,* Jay S. Bybee,
            and Sandra S. Ikuta, Circuit Judges.

                   Opinion by Judge Melloy




 *
   The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
2                  UNITED STATES V. CARTER

                           SUMMARY**


                           Criminal Law

     The panel affirmed a criminal judgment in a case in which
the defendant, who asserts he was under the influence of
prescription drugs at the time he entered his guilty plea,
contends that the district court, by insufficiently inquiring as
to the effect of those drugs at the plea hearing, failed to fulfill
its duty under Fed. R. Crim. P. 11(b) to ensure the defendant
entered the plea knowingly and voluntarily.

    The panel held that the scope of the district court’s
inquiry was sufficient to ensure that the defendant entered his
plea knowingly and voluntarily, and it therefore did not
commit a constitutional or procedural error.


                             COUNSEL

Michael Tanaka (argued), Deputy Federal Public Defender;
Sean K. Kennedy, Federal Public Defender, Los Angeles,
California, for Defendant-Appellant.

Max B. Shiner (argued), Assistant United States Attorney,
Violent & Organized Crime Section; Robert E. Dugdale,
Assistant United States Attorney, Chief, Criminal Division;
André Birotte Jr., United States Attorney, Los Angeles,
California, for Plaintiff-Appellee.


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. CARTER                        3

                           OPINION

MELLOY, Circuit Judge:

    Defendant Huey Carter timely filed a direct appeal
following a guilty plea. He asserts he was under the influence
of prescription drugs at the time he entered his plea. Carter
asks us to vacate the plea because he contends the district
court insufficiently inquired as to the effect of those drugs at
his plea hearing. Without a more searching inquiry, Carter
argues, the district court failed to fulfill its duty under Federal
Rule of Criminal Procedure 11(b) to ensure he entered the
plea knowingly and voluntarily. Because the scope of the
district court’s inquiry was constitutionally and procedurally
sufficient, we affirm.

                                 I

    Huey Carter sold crack cocaine to a confidential
informant in December 2010. A grand jury returned an
indictment in April 2011, charging Carter with distributing
crack cocaine. Carter was arrested and arraigned in February
2012. He pleaded not guilty, and the court appointed a public
defender to represent him.

    A few weeks later, Carter asked the court to allow him to
represent himself. A hearing on self-representation was set
for March, but the parties stipulated to postponing the hearing
date to April. At the April hearing, Carter explained he had
attended school through the twelfth grade, represented
himself in another case, and researched the law about self-
representation. He specifically mentioned he wanted to
4                       UNITED STATES V. CARTER

“exercise [his] Faretta1 rights.” To ensure that Carter was
competent to represent himself, the district court asked him
about an allegation that his hearing had been postponed
because he had been placed on suicide watch. Carter denied
the allegation. Carter’s public defender expressed no
concerns about Carter’s ability to carry out the basic tasks of
representing himself. The district court granted Carter’s
request to represent himself. The district court nevertheless
expressed concern about the suicide-watch issue and asked
the government to look into it.

    The government filed a report in May explaining Carter
was insubordinate while in custody.          It was that
insubordination, not suicide watch, that forced Carter to
postpone the hearing.

    Carter and the government eventually signed a plea
agreement in August 2012. In exchange for pleading guilty,
the government agreed to dismiss an information regarding a
prior drug conviction, effectively taking a ten-year
mandatory-minimum sentence off the table. In the plea
agreement, the government explained the penalties, the
elements of the offense, and the constitutional rights that
Carter was waiving. The agreement also included an appeal
waiver, allowing Carter to appeal based only on the
voluntariness of the guilty plea.

     The district court held a plea hearing in September 2012.
The district court asked about Carter’s mental state. Before
administering the oath, the district court instructed Carter to
tell the court if there was anything he did not understand.
The district court asked Carter for his name, whether he

    1
        Faretta v. California, 

(1975).
                UNITED STATES V. CARTER                    5

wanted to withdraw his initial plea, and for his new plea. It
then administered the oath.

    The district court asked Carter about his age and
education. He responded, “Forty-two” and “Twelfth Grade,”
respectively. Carter stated he did not have a high school
diploma and confirmed he was a United States citizen. The
following exchange then took place regarding Carter’s mental
illness and medications:

       THE COURT:         Have you recently been
                          treated for any kind of
                          mental illness or addiction
                          to narcotics, Mr. Carter?

       MR. CARTER:        Yes; mental illness.

       THE COURT:         And are you taking any
                          medication for that right
                          now?

       MR. CARTER:        Yes, ma’am.

       THE COURT:         Can you tell me what
                          kinds of medication you’re
                          taking?

       MR. CARTER:        Seroquel and some
                          depression pills.

       THE COURT:         Are those affecting you in
                          any way so it’s hard for
                          you to understand the
6                UNITED STATES V. CARTER

                           things that I’m saying or
                           the lawyer is saying?

       MR. CARTER:         No, ma’am.

       THE COURT:          Do you believe that you
                           understand the purpose of
                           the hearing we’re having
                           today?

       MR. CARTER:         Yes, ma’am.

       THE COURT:          What are you going to do
                           today, sir?

       MR. CARTER:         Pleading guilty.

       THE COURT:          Okay. The Court finds
                           that Mr. Carter
                           understands both the
                           nature of the proceeding as
                           well as the statements
                           being made in the
                           courtroom, and that he is
                           in full possession of his
                           faculties.

    There was no objection to the district court’s finding, and
the district court continued with a normal plea colloquy. The
district court explained to Carter the rights he was waiving,
discussed the potential penalties, asked about the plea
agreement, and provided details about sentencing. Carter
appropriately responded to questions with either “Yes,
ma’am” or “No, ma’am.” The government explained the
                 UNITED STATES V. CARTER                       7

elements of the crime and laid out the factual basis for the
plea. The prosecutor explained that Carter agreed to sell
drugs to an confidential informant, purchased drugs from a
supplier, and then sold the informant over 50 grams of crack
cocaine. The district court finished the colloquy, throughout
which Carter continued to respond with either “Yes, ma’am”
or “No, ma’am.” At no point did Carter answer contrary to
what was expected or indicate there was anything he did not
understand. When the district court asked him whether he
was “guilty or not guilty,” Carter responded, “Guilty.” The
district court accepted the plea.

    The district court sentenced Carter in March 2013. Carter
neither moved to withdraw his guilty plea nor suggested to
the court that he entered his plea involuntarily or
unknowingly.

    In April 2013, however, Carter filed a direct appeal,
claiming that the district court failed to ensure that he entered
his plea knowingly and voluntarily.

                               II

    Carter contends the district court did not sufficiently
inquire about the effects of medications on his mental state.
Carter suggests that the alleged failure amounts to a Rule
11(b) violation and requires reversal. See Godinez v. Moran,

, 400 (1993) (explaining that before a district
court can accept a defendant’s plea, it must ensure that the
defendant is entering the plea knowingly and voluntarily).

    Although we review de novo whether a defendant entered
a plea knowingly and voluntarily, United States v. Timbana,

, 701 (9th Cir. 2000), we apply only plain error
8                   UNITED STATES V. CARTER

review when a defendant appeals based on an unobjected-to
Rule 11 procedural violation, United States v. Dominguez
Benitez, 

, 76 (2004).

    Carter fails to argue, in either his opening or reply brief,
that he actually entered his plea involuntarily or
unknowingly. He fails to point to any evidence to
demonstrate the alleged involuntariness of his plea. Further,
he does not explain how the medications at issue would have
impacted his ability to enter a plea knowingly and voluntarily.
Rather, the fighting issue is simply whether the district court
erred by failing to undertake a sufficient inquiry “to ensure
that the constitutional requisites [of voluntariness and
knowingness] were met.” At its core, the appeal presents a
Rule 11 procedural question. And because Carter did not
object, plain error review is appropriate.2

    Under the plain error standard, we grant relief only if we
find (1) there was error, (2) the error was plain, and (3) the
error affected substantial rights. United States v. Cotton,

, 631 (2002). Because we hold that the district
court’s inquiry here was constitutionally and procedurally
sufficient, “there was no error, plain or otherwise.” See
United States v. Covian-Sandoval, 

, 1095 (9th
Cir. 2006). Accordingly, we need not reach the second and
third prongs of the plain error analysis.

    Under Federal Rule of Criminal Procedure 11(b), a
district court has the duty to ensure “the defendant


    2
   This conclusion also finds support in cases cited by Carter. See, e.g.,
United States v. Yang Chia Tien, 

, 469 (2d Cir. 2013)
(applying plain error review to an unobjected-to Rule 11 claim); United
States v. Savinon-Acosta, 

, 268 (1st Cir. 2000) (same).
                 UNITED STATES V. CARTER                      9

understands” the rights that he is giving up, the nature of the
charge, the applicable penalty range, and the contours of the
plea agreement. Rule 11 has two main purposes. First, it
helps ensure a defendant is pleading guilty voluntarily.
McCarthy v. United States, 

, 465 (1969).
Second, it helps the district court produce a complete record.

the district court erred by failing to ask
more than just a few questions about his medications. No
case from this court or Supreme Court is directly on point.

    In a similar situation, however, this court addressed the
requisite mental-state inquiry when a defendant with a known
mental issue attempted to plead guilty. 

–07. On the heels of a competency hearing where the
district court found the defendant competent to stand trial, the
defendant sought to enter a guilty plea. 

A plea
hearing occurred roughly a month and a half after the
competency hearing, and the district court began by ensuring
that the defendant remained competent. 

The
district court asked the defendant about his education, about
any potentially mind-altering substances, and whether he
understood the purpose of the plea hearing. 

court asked both parties whether they had any additional
qualms about the defendant’s ability to understand the
proceedings, and both parties responded that there were no
new developments since the defendant’s competency hearing.

the defendant contended that even if he had
been competent to plead, his plea should nonetheless be
vacated because the district court failed under Rule 11 to
ensure that the defendant understood the factual basis for his
plea. 

He argued that the district court should have
asked him “to state in his own words” what he had done,
10               UNITED STATES V. CARTER

pointing to several cases from our sister circuits supporting
the proposition that the Rule 11 colloquy must be “broadened
under certain circumstances.” 

The Timbana
majority concluded that the inquiry conducted in this case
satisfied the inquiry demanded by the cases cited, observing
that the district court had not “ignore[d] evidence” that the
defendant lacked understanding and had “conducted a
searching inquiry.” 

It thus found no Rule 11
violation. 

considered the Rule 11 colloquy
standard, that case did not deal with the precise question at
issue here: whether a defendant’s statement that he presently
is or may be under the influence of medication triggers an
expanded Rule 11 colloquy to ensure that the defendant is
“knowingly and voluntarily” entering a guilty plea. We, like
the majority in Timbana, look outside the Circuit for
guidance. The First, Second, Third, Fourth, Seventh, Eighth,
and Tenth Circuits have all addressed the issue before us.
Every circuit that has considered the issue agrees the district
court has some additional duty to follow up with the
defendant upon learning the defendant is under the influence
of some medication or substance.

    But the depth of that inquiry is unclear. Surveying case
law across the circuits, a few commonalities emerge. District
courts should ask about the types of drugs and whether the
medications are affecting the defendant’s mental state. They
need not (but are nonetheless encouraged to) inquire about
the exact names or dosages of the medications. And, when
determining whether defendants are competent, district courts
are entitled to rely on their own observations of defendants,
the defendants’ answers throughout the proceeding (not just
when discussing competency), and the defendants’ medical
                 UNITED STATES V. CARTER                    11

histories (or lack thereof). In general, appellate courts have
vacated pleas only when the district court failed completely
to engage in any meaningful follow-up with a defendant.

    The Third Circuit first took up the question in 1987.
United States v. Cole, 

, 46 (3d Cir. 1987). The
Third Circuit held that when a district court is alerted to the
possibility that a medication or other drug may cloud a
defendant’s judgment, the district court must inquire further
to determine whether the defendant is entering his plea
voluntarily and knowingly. 

case failed to define
the contours of the inquiry. See 

It held only
that, after learning that the defendant had ingested drugs the
previous evening, asking, “Do you understand what I have
said to you?” is insufficient. 

In 2007, the Third
Circuit revisited the issue in a case where the defendant
disclosed that he was presently seeing three mental-health
professionals and he had taken “[t]wo Ativan” the morning of
the plea hearing. United States v. Lessner, 

, 193
(3d Cir. 2007). The district court asked if the medication
“affect[ed the defendant’s] ability to understand and
appreciate what is taking place.” 

explained that he understood what was happening in the
courtroom. 

explained that the medication
“puts [him] in perspective” and “calms [him] down” so he
can “deal with the circumstances.” 

concluded
that the district court “sufficiently discharged its duty under
Rule 11 to inquire into [defendant’s] capacity to enter a
knowing and voluntary plea and, in fact, found she did just
that.” 

   In 1988, the Second Circuit adopted Cole’s holding.
United States v. Rossillo, 

, 1066–67 (2d Cir.
1988). The Second Circuit vacated a guilty plea where the
12               UNITED STATES V. CARTER

district court made no inquiry into the defendant’s state of
mind despite the defendant admitting he was on medication.

the Second Circuit reaffirmed its holding in
Rosillo. It vacated a guilty plea after the district court learned
the defendant was on medication but failed “to ascertain
whether [the medications] could impact his ability to
proceed.” United States v. Yang Chia Tien, 

,
470 (2d Cir. 2013). “[O]nce the district court learned that
[the defendant] was on a series of medications, there should
have been further inquiry into the specific medicines and their
side effects.” 

Circuit explained that, at a
minimum, the district court must “ask about the effects of
[the] medications, and [] conduct an inquiry into the
defendant’s state of mind.” 

    In 1991, the First Circuit suggested the best practice
would be to ask about the types, effects, and dosages of
medications. See United States v. Parra-Ibanez, 

, 596 (1st Cir. 1991). Then, in 1999, the First Circuit
affirmed a plea where the defendant disclosed he had taken
Xanax and Ativan and where the district court asked why the
defendant took the medications, when the defendant last took
the medications, and whether the medications “in any way
affected [the defendant’s] capability or ability to understand
today’s proceedings.” Miranda-Gonzalez v. United States,

, 166 (1st Cir. 1999). The First Circuit found
this inquiry as well as the absence of any “warning flags” in
the defendant’s answers or behavior during the colloquy was
sufficient to affirm the plea. 

    In 2000, the First Circuit reaffirmed what it considered
the best practice—“to identify which drugs a defendant is
taking, how recently they have been taken and in what
quantity, and (so far as possible) the purpose and
                 UNITED STATES V. CARTER                      13

consequences of the drugs in question.” United States v.
Savinon-Acosta, 

, 268 (1st Cir. 2000). It
clarified, however, that “there is certainly no settled rule that
a hearing cannot proceed unless precise names and quantities
of drugs have been identified,” and the district court can rely
on “practical judgments” to determine the likely or actual
effects of a particular drug on the voluntariness of the plea.

And it also stated that above all, “[t]he critical
question is whether the drugs—if they have a capacity to
impair the defendant’s ability to plead—have in fact done so
on this occasion.” 

To conclude that the plea is
voluntary, district courts may rely on the defendant’s own
assurances, the defendant’s performance during the plea
hearing, and any prior medical history. 

    Since Savinon-Acosta, the First Circuit has distinguished
Parra-Ibanez from other cases because the district court in
Parra-Ibanez “failed to follow up with any question
whatsoever about whether the defendant’s medication
affected his competence,” and the Circuit has held that the
district court is not required to seek out the name and dosage
of every medication. See United States v. Kenney, 

, 46–47 (1st Cir. 2014) (finding guilty plea proper when the
district court received assurances that the defendant could
understand the proceeding despite the court not asking “the
name and dosage of each medication”).

    The Fourth Circuit has held that “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.” United States v. Damon,

, 565 (4th Cir. 1999). In Damon, the Fourth
Circuit vacated a plea when the district court learned that the
defendant was under the influence of medication but failed to
14               UNITED STATES V. CARTER

determine what, if any, effect the medication had on the
defendant. 

the case to allow the district court
to determine whether the medication’s potential effects could
have affected the defendant’s plea. 

    The Tenth Circuit has not expressly held that a district
court must ask follow-up questions when a defendant reveals
that he is under the influence of medication. See United
States v. Browning, 

, 753–54 (10th Cir. 1995). In
Browning, however, the Court found no Rule 11 violation
after the district court “inquired as to whether the medication
had in any way affected [the defendant’s] ability to think or
comprehend” and the defendant “assured the court [the
medication] had not [affected his ability to think or
comprehend],” the district court questioned the defendant’s
counsel if he had any qualms about the defendant’s mental
state, the district court clarified the purposes of the
medication, and the district court noted that the defendant had
not previously been treated for mental illness. 

This information along with the district court’s “own
observations” led the district court to find the defendant
competent. 

Circuit also put some onus on the
defendant to demonstrate the alleged intoxicating effects of
the medication. It held that, even if the district court “’did
not probe deep enough,’” the defendant was not entitled to
reversal because “the complete absence of evidence that his
ability to enter a knowing and voluntary plea was affected by
the medications renders any deficiency harmless.” 

Circuit applies a somewhat more relaxed
requirement. In United States v. Dalman, the district court
asked the defendant if he was under the influence of any
medication, to which the defendant responded he was taking
four different types of medications but could not remember
                 UNITED STATES V. CARTER                    15

the specific names of the drugs. 

, 538 (8th Cir.
1993). When asked whether he could understand what was
going on “right now,” the defendant responded, “Yes.” 

time during the change of plea hearing did the
defendant demonstrate that he might have been confused or
that his mental condition was otherwise affected. 

Circuit found this inquiry, along with the defendant’s
“performance during the plea hearing,” was sufficient to
uphold the plea. 

The Court noted that Dalman
“simply . . . made no showing that the medications so affected
him at the time of his plea hearing as to make him incapable
of knowingly and intelligently entering his plea of guilty” and
that his plea performance was inconsistent with his “after-the-
fact claim that he did not understand the proceedings.” 

    The Seventh Circuit specifically rejected the necessity to
inquire “how much of each drug” the defendant ingested and
“what effects the medications . . . might have [had] on [the
defendant’s] clear-headedness.” United States v. Hardimon,

, 942 (7th Cir. 2012) (internal quotation marks
omitted). It explained that a district court’s questions
regarding whether the defendant could think clearly during
the plea hearing were sufficient. 

recognized
that mere coherence may not be conclusive, but it also
recognized that “[a] combination of deeply confused or
clouded thinking with coherent speech and a normal
demeanor is rare.” 

It cautioned district courts not
to assume simply because a defendant is taking a medication
that he cannot “think straight.” 

It also placed the
onus on the defendant to show a debilitating effect from the
medication; if a defendant wants to withdraw his plea, “the
defendant needs to present the affidavit of a qualified
psychiatrist” in the absence of clear incoherence. 

STATES V. CARTER

    These cases all suggest the same conclusion—if a district
court learns that a defendant is under the influence of some
medication, it has a duty to determine, at a minimum, what
type of drug the defendant has taken and whether the drug is
affecting the defendant’s mental state. When determining
whether there is any effect on defendants, district courts may
rely on defendants’ answers to their inquiries as well as their
observations of defendants during the hearing. See Miranda-

; 

;

–54; 

.
District courts may also consider a defendant’s medical
history, including the defendant’s history of mental illness.
See 

; 

–54; 

n.16. And while it
may be helpful to look at the dosage and specific names of
medications, this is not required. See 

–47; 

.

    Indeed, the complete failure to undertake any additional
inquiry into the mental state of the defendant, after the
defendant has alerted the court of medication, will not satisfy
Rule 11’s demands. See 

–47 (reversing
when, after learning the defendant had taken drugs the
previous evening, the district court asked only, “Do you
understand what I have said to you?” and did not ask about
the effect of the drugs); 

(reversing
where there was no on-the-record determination whether the
defendant’s ability to understand the proceeding was affected
by the influence of any medication); 

–96 (reversing where the defendant revealed he took
three medications and the district court posed no questions as
to whether those medications affected the defendant’s
comprehension); 

(remanding for
harmless-error analysis where district court failed to ask
                 UNITED STATES V. CARTER                       17

about any potential effect of medication after it was “put on
direct notice that [defendant] could be under the influence of
a drug while entering his plea”).

    These cases are persuasive and lead us to find that the
district court in the present case did not err. Here, the district
court asked Carter mental-state-related questions after Carter
revealed he was under the influence of medication. It asked
Carter the type of medication. Carter responded, “Seroquel
and some depression pills.” It asked if those drugs were
“affecting [Carter] in any way so it’s hard for [him] to
understand the things that [the court] or the lawyer is saying,”
and Carter responded, “No, ma’am.” The district court
continued its inquiry, asking whether Carter “underst[ood] the
purpose of the hearing.” Carter responded affirmatively. To
ensure that Carter understood, the district court then asked
Carter to tell it what was the purpose of the hearing. Carter
responded, “Pleading guilty.”

    It was only after this inquiry that the district court
declared Carter competent to proceed with the guilty plea.
Carter’s performance during the rest of the plea hearing also
supports the conclusion of competency. Carter responded
appropriately to the questions posed by the district court.
Although Carter’s responses generally consisted simply of
“Yes, ma’am” or “No, ma’am,” Carter’s answers were
responsive to the questions asked and were consistent with
affirming understanding or indicating he had no questions for
the court. To the extent Carter now argues that the alleged
suicide watch should have forced the district court to
undertake a more thorough inquiry, the record belies the
argument. Carter disavowed any threat of suicide, and the
government submitted evidence showing that the reason for
18                  UNITED STATES V. CARTER

postponing the hearing date was Carter’s insubordination, not
an alleged placement on suicide watch.

   Accordingly, we conclude that the district court’s inquiry
was sufficient to ensure that Carter entered his plea
knowingly and voluntarily, and it therefore did not commit a
constitutional or procedural error.       In reaching this
conclusion, we join the majority of circuits that have
considered this issue.3

     AFFIRMED.




 3
   Indeed, the closest Carter comes to pointing to contrary authority is in
suggesting that the district court’s inquiry would fail under the First
Circuit’s best practices—that a district court should determine the name
and dosage of any medications. See 

. But
as the First Circuit has subsequently held, this is not required. 

–47.