                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               NOV 02, 2007
                               No. 06-14664                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                  D. C. Docket No. 05-00063-CR-KOB-TMP

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

BRYAN WILLIAM HOOBLER,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________

                              (November 2, 2007)

Before BIRCH, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Bryan William Hoobler appeals his conviction, following his guilty plea, to
one count of conspiracy to manufacture 50 grams of methamphetamine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and one count of

manufacturing 5 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B). We affirm.

                                 I. BACKGROUND

      On March 27, 2002, local law enforcement officers in Walker County,

Alabama, were serving an unrelated arrest warrant, when they discovered Hoobler

and three other individuals engaged in methamphetamine production. They were

using a method of methamphetamine production known as the anhydrous ammonia

method, which routinely yields fifty grams or more of methamphetamine for each

production or cooking. Hoobler assisted in providing the anhydrous ammonia.

      After an indictment issued charging the four defendants with conspiracy to

manufacture, distribute, and possess with the intent to distribute 50 grams or more

of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), Hoobler’s

counsel filed a motion for a psychiatric examination. Because Hoobler had

suffered a severe accident that required a metal plate to be inserted in the back of

his neck and skull, which had left him allegedly disabled, his counsel asked the

court for a psychiatric evaluation to determine whether Hoobler had sufficient

mental competence to understand the charges and proceedings against him and



                                           2
whether he was able to aid in his defense. The magistrate judge granted Hoobler’s

motion and ordered that he be evaluated to determine whether he was competent to

stand trial and the extent to which his mental illness may have affected his

behavior at the time of the offense.

      Hoobler was referred to the Federal Medical Center (“FMC”) in Lexington,

Kentucky, where he was evaluated from May 27, 2005, until July 26, 2005.

Although Hoobler had suffered from a history of depression, suicidal tendencies,

and substance abuse, the evaluating psychologists found him to be alert, attentive,

and cooperative. During his stay, Hoobler displayed no behavior management

problems and had no problems understanding or following directions from the

correctional staff. He participated in a number of psychological tests. A test of his

cognitive functioning indicated that he had a full-scale intelligence quotient of 78,

indicating borderline or low average intellectual ability. Hoobler showed no

deficiencies in memory relative that to his overall intellectual functioning. He did

not exhibit symptoms of a severe or persistent mental illness; his thought process

was coherent, well-organized, and goal-directed; and he did not evidence severe

cognitive impairment in interactions with the examiner or others during the course

of his evaluation at FMC.

      Regarding the charges against him, Hoobler was able to explain the crimes



                                           3
with which he had been charged, recount meetings with his counsel, and explain

the roles of his counsel, the prosecuting attorney, judge, and jury. The evaluators

found that he described the acts constituting his alleged offense in a rational and

reality-based manner and that he indicated that he would be able to provide this

same information to his attorney. Hoobler was aware that he faced an

imprisonment sentence of ten years if convicted. He expressed no indication of

confusion, disorientation, or perceptual distortion concerning his legal situation.

The evaluating psychologists concluded that Hoobler was not suffering from a

mental disease or defect that would render him mentally incompetent to understand

the nature and consequences of the proceedings against him or to assist in his

defense. Accordingly, Hoobler was determined to be competent to stand trial by

the FMC evaluators.

      A magistrate judge conducted a hearing on Hoobler’s competency to stand

trial and accepted into evidence the FMC psychological evaluation. Hoobler

testified that he did not recall an instance in which he had called his attorney, asked

a question, and was given an answer. He also did not remember anything about

being arrested at a meth lab. During cross-examination, however, Hoobler

admitted that he knew that the purpose of the hearing was for the judge to

determine whether he was competent to stand trial.



                                           4
      The magistrate judge issued a report and recommendation, wherein he noted

that Hoobler’s psychological evaluators had reported him to be “alert, attentive,

and cooperative,” with “no problems understanding directions.” R1-72 at 2. The

magistrate judge found that the report confirmed that Hoobler had trouble

remembering specific dates and details, but that he had “a factual and rational

understanding of the charges and proceedings against him, and [wa]s able to recall

events relevant to the proceedings.” Id. at 3. The magistrate judge explained that

Hoobler’s “combination of his memory deficits, his drug dependence, and his

depression and anxiety ma[d]e for a very difficult set of defense circumstances,

[but] they d[id] not rise to the level of incompetence to stand trial.” Id. at 5. He

concluded that Hoobler “evidenced a rational understanding of the proceedings

against him and c[ould] consult with his lawyer regarding certain events relevant to

the charge.” Id. at 5. Accordingly, the magistrate judge recommended that

Hoobler be found competent to stand trial.

      Hoobler’s counsel appealed the magistrate judge’s competency

determination to the district judge and moved for an independent psychiatric

evaluation. He alleged that Hoobler probably sustained brain damage from his

accident and requested that, in the interest of justice, the court approve expenses

for Hoobler to obtain an independent psychiatric evaluation. Hoobler’s counsel



                                           5
recommended Dr. Gagan Dhaliwal, with whom the counsel had prior experience,

and asked the judge to approve payment for Dr. Dhaliwal’s evaluation.

      The district judge denied Hoobler’s motion for an independent psychiatric

evaluation and overruled his appeal of the magistrate judge’s report and

recommendation. After conducting an independent review of the record, the

district judge adopted the magistrate judge’s competency finding and ruled that

Hoobler was competent to stand trial. The district judge denied Hoobler’s motion

for a second court-provided psychiatric evaluation and ruled that the FMC report

“reflect[ed] a thorough investigation” and that Hoobler should have requested a

defense expert before the competency hearing if he had desired one. R1-85 at 2.

The judge explained that “[t]o grant the motion now would require further delays

in the case for yet another examination, an opportunity for the Government to rebut

any report, and a new competency hearing.” Id.

      Hoobler filed a notice of interlocutory appeal and argued that the district

judge’s order adopting the magistrate judge’s competency finding and denying his

motion for an independent evaluation was a final judgment that had to be appealed

prior to trial. We held that the district judge’s order finding Hoobler competent to

stand trial was not final and appealable and dismissed Hoobler’s appeal.

      Hoobler’s counsel then moved for a new hearing regarding his competency,



                                          6
because, since the prior hearing, Hoobler had been evaluated by Dr. Dhaliwal, the

forensic psychiatrist who had been requested previously at court expense; a copy

of his report was attached to the motion. Dr. Dhaliwal reported that he had

evaluated Hoobler on January 31, 2006, for one hour and forty-five minutes, and

that it was his opinion that Hoobler did not have the ability to assist his counsel

and, consequently, he was not able to proceed with his trial. Dr. Dhaliwal found

Hoobler alert but uncertain of the charges against him, and he stated that his

mother handled the legal issues, apparently with his counsel. Dr. Dhaliwal

reported that Hoobler stated that he did nothing wrong, that he did not know the

consequences of the legal charges against him, and that he did not know what plea

he had entered. Nonetheless, he knew the name of his defense attorney. Dr.

Dhaliwal concluded that Hoobler did not have the ability to assist his counsel and,

therefore, he was unable to proceed with his trial.

      The magistrate judge provided a second report and recommendation and

determined that Dr. Dhaliwal’s letter did not raise sufficient new evidence about

Hoobler’s condition to merit another competency hearing because it did not

indicate that Hoobler “suffer[ed] from any mental illness that prevent[ed] [him]

from understanding the nature of the proceedings against him and from assisting

his lawyer within the limits of his memory loss.” R1-104 at 6. The magistrate



                                           7
judge concluded that “memory loss alone (or, at least as portrayed in this

defendant) is not enough to cause [him] to be deemed incompetent to stand trial,”

id., and that “[i]nability to remember the events underlying a criminal charge

simply does not equate to incompetence to stand trial,” id. at 7. Therefore, the

magistrate judge recommended denying Hoobler’s motion for a second

competency hearing.

      Hoobler’s counsel objected to the magistrate judge’s second report and

recommendation. He argued that the magistrate judge misinterpreted Dr.

Dhaliwal’s letter and that the doctor had found that a mental illness prohibited

Hoobler from understanding the nature of the proceedings against him and

assisting his lawyer in his defense. He further argued that the FMC report did not

include the qualifications of the examiners, and he provided the qualifications of

Dr. Dhaliwal.

      The district judge accepted the magistrate judge’s second report and

recommendation and denied Hoobler’s motion for another competency hearing.

The district judge found that the FMC report was prepared by Dr. Campbell, who

had a Ph.D. in forensic psychology, and that Dr. Dhaliwal was an M.D. without

any listed experience in clinical practice since 2000. The district judge noted that

Dr. Dhaliwal “expressed legal, not factual conclusions, and the facts contained in



                                          8
his report did not support his legal conclusion.” R1-106 at 1-2. The district judge

reiterated the magistrate judge’s finding that memory loss alone could not be

equated with incompetency and determined that “the factual statements in Dr.

Dhaliwal’s report d[id] not support a finding of incompetency to stand trial.” Id. at

2. The district judge ruled that Hoobler had failed to offer new evidence of mental

illness that would prevent him from understanding the nature of the proceedings

against him and noted that Dr. Dhaliwal’s report would not have changed the

ruling if it had been offered before the initial competency hearing.

      Thereafter, Hoobler entered into a plea agreement with the government,

whereby he agreed to plead guilty to both counts for which he was charged in the

superceding indictment. The plea agreement contained a provision, highlighted in

bold print, in which Hoobler agreed to “waive[ ] his right to appeal his conviction

and sentence, on both direct and collateral appeal, so long as that sentence is within

the advisory guideline range, as that range is determined by the Court.” R1-106 at

5. Another provision stated that Hoobler was aware of the charges, the elements of

each count, and had discussed the charges and possible defenses with his counsel.

Hoobler verified that he was pleading guilty because he was guilty. The plea

agreement contained another bold-type provision in which Hoobler waived his

right to appeal his conviction and his sentence by direct or collateral appeal,



                                           9
subject to an exception for “[a]ny punishment that constitutes an upward departure

from the advisory guideline sentencing range, as that range is determined by the

court at the time sentence is imposed.” Id. at 8-9.

      At his change-of-plea proceeding, Hoobler stated that he took medication,

but that it did not affect his ability to understand and respond to the judge’s

questions. The district judge asked Hoobler to interrupt the proceedings if at any

point he did not understand what was occurring and told him that, if he did not

interrupt, then the judge would presume that he comprehended the hearing.

Hoobler informed the judge that he understood the terms of his plea agreement

when he signed it. His counsel told the judge that he and Hoobler had sufficiently

discussed the plea agreement and that his counsel was able to answer satisfactorily

all of Hoobler’s questions. Hoobler verified that he had a sufficient opportunity to

discuss the agreement with his counsel and that his counsel had answered all of his

questions to his satisfaction. He responded that he understood specific provisions

in the plea agreement, including the appeal waiver; the government’s discretion to

file for a downward departure based on substantial assistance; the advisory nature

of the Sentencing Guidelines; his sentence could be based on the agreed facts; the

agreement was not binding upon the court; and he would be unable to revoke his

plea if the judge sentenced him to a term of imprisonment beyond that



                                           10
recommended by the government. Hoobler stated that he had not been promised

anything or threatened to procure his guilty plea and that, if he pled guilty, then the

only remaining proceeding was his sentencing.

      The district judge explained the maximum penalties associated with the

charges. Hoobler confirmed that his counsel clearly had explained the maximum

penalties and that he understood them; the mandatory minimum sentences that he

faced; his sentence would be determined with reference to the advisory Sentencing

Guidelines; and his actual sentence could differ from the Sentencing Guidelines

range. Hoobler informed the judge that he understood that he could enter a plea of

not guilty, whereby the government would have to prove his guilt to a jury beyond

a reasonable doubt, and that he would have the rights to the assistance of counsel,

to confront witnesses, and to not bear witness against himself. He further stated

that he understood he would be relinquishing those rights if he pled guilty.

Hoobler stated that nothing prevented him at that time from understanding what

the judge was saying to him, discussions with his counsel, the nature of the charges

that he faced, or the purpose of the change-of-plea proceeding. Not only did

Hoobler state that he understood the charges and the elements that the government

was required to prove, but also he testified that he had discussed the charges with

his counsel and that he was satisfied with his counsel’s representation. Hoobler’s



                                           11
counsel stated that he felt Hoobler understood the charges against him and that he

was knowingly and voluntarily entering his guilty plea.

       The government read a statement of the facts that it would prove if the case

went to trial, and Hoobler acknowledged that the statement was substantially

correct. Hoobler admitted that he participated in the manufacture of

methamphetamine and that he desired to plead guilty to the charges. The district

judge reminded Hoobler that he was not required to plead guilty and that this

would be his last chance to change his plea. Hoobler stated that he did not wish to

reconsider his plea and that he still desired to plead guilty. Hoobler pled guilty to

both charges in the superceding indictment. The judge found that Hoobler’s plea

was given competently, freely, voluntarily, and knowingly and was supported by

the requisite factual basis.

       The probation officer prepared Hoobler’s presentence investigation report

(“PSI”), which showed a Sentencing Guidelines range of 168 to 210 months of

imprisonment. The government filed a motion for consideration of Hoobler’s

substantial assistance and recommended a downward departure from the

Guidelines range for Hoobler’s assistance in providing information concerning his

drug trafficking activities and those of his codefendants. The government

recognized that Hoobler’s willingness to testify against his codefendants likely



                                          12
caused one of his codefendants to plead guilty. Hoobler also supplied the

government with information that corroborated the identities of others involved in

the methamphetamine trade in and around Walker County.

      The district judge sentenced Hoobler to 96 months of imprisonment.

Hoobler filed a notice of appeal in which he argues that the district judge erred by

finding him competent and accepting his plea. The government filed a motion to

dismiss the appeal, in which it argued that the appeal-waiver provision of

Hoobler’s plea agreement prohibited him from raising any issues on appeal. We

ordered that the government’s motion be carried with the case.

                                 II. DISCUSSION

A. Government’s Motion

      The government seeks to enforce the plea-agreement provision whereby

Hoobler agreed to waive his right to appeal his conviction and sentence. Hoobler

does not attack his sentence; instead, his only issue on appeal is whether he was

competent to plead guilty. Generally, a defendant who pleads guilty is precluded

from challenging his conviction on appeal, except on the ground that the plea was

involuntary. United States v. Kaiser, 893 F.2d 1300, 1302 (11th Cir. 1990). Like a

guilty plea, an appeal-waiver provision must be made knowingly and voluntarily to

be effective. United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993).



                                          13
Because a defendant can always appeal his decision to plead guilty on the ground

that he did so involuntarily, he also can appeal whether he was competent to enter

into a plea agreement whereby he relinquished his right to appeal his conviction.

See Godinez v. Moran, 509 U.S. 389, 400 n.11, 113 S.Ct. 2680, 2687 n.11 (1993)

(noting “that the prohibition against the trial of incompetent defendants dates back

at least to the time of Blackstone”). Therefore, the government’s motion to dismiss

the appeal is denied, and we proceed to the merits of Hoobler’s appeal.

B. Competency to Enter into the Plea Agreement

      On appeal, Hoobler argues that a finding of competency is essential before a

criminal defendant may enter into a plea agreement or change his plea to guilty.

He notes that the prosecution and defense experts held differing opinions with

regard to Hoobler’s competency at the time of his crimes and during court

proceedings. Hoobler contends that, because he was unable to aid in his defense,

the district court violated his Due Process rights by allowing him to plead guilty.

      We review a district judge’s decision on a defendant’s competency to stand

trial for clear error. United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir.

2006) (per curiam) (citing United States v. Hogan, 986 F.2d 1364, 1371 (11th Cir.

1993)). A district judge makes a clearly erroneous finding of fact when that

finding leaves us “‘with a definite and firm conviction that a mistake has been



                                          14
committed.’” Hogan, 986 F.2d at 1372 (citation omitted). A judge cannot clearly

err when deciding between two permissible views of the evidence. Izquierdo, 448

F.3d at 1278. “The standard for competency to stand trial 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.’” Hogan, 986 F.2d at 1371 (quoting

Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789 (1960)). This same

competency standard applies to a defendant who wishes to plead guilty rather than

stand trial.1 Godinez, 509 U.S. at 396-99, 113 S.Ct. at 2685-86.

       The record reveals that the district judge did not clearly err by finding that

Hoobler was competent to enter a plea of guilty. To reach her conclusion, the

judge relied on the report authored by the FMC psychologists, who studied

Hoobler as an inpatient for two months. The report found that, although Hoobler

had borderline intelligence and some deterioration of his memory, he understood

the nature of the charges that he faced and the potential consequences; could

provide his attorney with knowledge of the facts supporting the alleged offense;



       1
          Hoobler argues that the question before the district judge was whether he was
competent at the time of his crimes. By pleading guilty, however, Hoobler waived all non-
jurisdictional defenses, including his mental competence at the time of his commission of the
crimes with which he was charged. Speed v. United States, 441 F.2d 1106, 1107 (5th Cir. 1971)
(per curiam).

                                             15
and had an understanding of his impending legal proceedings. The report

concluded that Hoobler was not then suffering from a mental disease or defect that

rendered him mentally incompetent to understand the nature and consequences of

the proceedings against him or to assist in his defense and that Hoobler was

competent to stand trial. The district judge could rely on this assessment and

discount the report supplied by Dr. Dhaliwal, a psychiatrist retained by Hoobler,

who had examined him for less than two hours before arriving at a largely

unsubstantiated finding that Hoobler was incompetent to proceed. Furthermore,

the judge also could rely on observations of Hoobler at the competency hearing

and at the change-of-plea-hearing, where he demonstrated his understanding of the

legal proceedings and potential consequences of a conviction. Additionally, the

judge’s competency finding was buttressed by the government’s motion at

sentencing for the court to consider Hoobler’s substantial assistance in providing

truthful and reliable information about the drug trafficking activities of his

codefendants and throughout Walker County, Alabama. Consequently, the district

judge did not clearly err by finding Hoobler competent to enter a guilty plea.

      Hoobler does not argue precisely that his guilty plea was offered without a

knowing and voluntary waiver of his trial rights, but he does question whether his

competency allowed him to understand the nature of his decision to plead guilty.



                                           16
The Supreme Court has recognized a “two-part inquiry,” which requires that a trial

judge determine first whether a defendant is competent and then ensure that the

defendant who wishes to plead guilty makes a knowing and voluntary waiver of his

trial rights. Godinez, 509 U.S. at 401, 113 S.Ct. 2688. While the focus of the trial

judge’s competency inquiry is whether the defendant “has the ability to understand

the proceedings,” “[t]he purpose of the ‘knowing and voluntary’ inquiry . . . is to

determine whether the defendant actually does understand the significance and

consequences of a particular decision.” Id. at 401 n.12, 113 S.Ct. 2687 n.12.

Therefore, Hoobler’s argument encompasses both his capacity to plead guilty and

whether he waived his trial rights knowingly and voluntarily.

      Because a guilty plea involves the waiver of a number of a defendant’s

constitutional rights, due process requires that a defendant make his plea

knowingly and voluntarily. United States v. Moriarty, 429 F.3d 1012, 1019 (11th

Cir. 2005) (per curiam). Ordinarily, we will review de novo whether a guilty plea

was entered knowingly and voluntarily. Allen v. Thomas, 161 F.3d 667, 670 (11th

Cir. 1998). Nonetheless, where the defendant does not object to an alleged

violation of Federal Rule of Criminal Procedure 11 before the trial judge, as

Hoobler failed to do, we can review only the plea circumstances for plain error.

Moriarty, 429 F.3d at 1018. Under a plain error standard of review, if a defendant



                                          17
can establish that there is error, that is plain, and which affects his substantial

rights, then we have the discretion to recognize that forfeited error, but only if the

error “seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” Id. at 1019. When accepting a guilty plea, a judge must comply

with the requirements of Rule 11 and must “specifically address three ‘core

principles,’ ensuring that the defendant (1) enters his guilty plea free from

coercion, (2) understands the nature of the charges, and (3) understands the

consequences of his plea.” Id.

      The district judge did not plainly err by accepting Hoobler’s guilty plea as

voluntary, knowing, and intelligent because Hoobler’s plea colloquy met the three

core objectives of Rule 11. Aware that Hoobler’s competency previously had been

raised as an issue, the judge proceeded cautiously through the change-of-plea

proceeding to ensure that Hoobler understood the charges that he faced, the rights

that he would waive by pleading guilty, and the sentencing consequences of his

plea. Hoobler told the judge that no mental impairment affected his ability to

understand the judge’s questions as well as understand the advice of his counsel,

and he stated that he had not been forced to plead guilty. Throughout the hearing,

he answered that he understood the terms of the plea agreement that he had signed,

the judge’s explanations of the charges that he faced, the maximum punishments



                                            18
for those crimes, how his sentence would be determined, and the rights that he

would forego by pleading guilty. Hoobler’s counsel acknowledged that Hoobler

was pleading guilty knowingly and voluntarily. Hoobler agreed with the accuracy

of the government’s statement of the facts that it would prove if the case had gone

to trial, admitted that he had manufactured methamphetamine, and pled guilty.

Our review of Hoobler’s change-of-plea proceeding shows that he competently,

knowingly, and voluntarily entered his guilty plea.2

                                     III. CONCLUSION

       Following his guilty plea to conspiracy to manufacture of 50 grams of

methamphetamine and manufacturing 5 grams of methamphetamine in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846, Hoobler appeals as error the district

judge’s finding him competent and accepting his guilty plea pursuant to a plea

agreement with the government. As we have explained, Hoobler entered his guilty

plea competently, knowingly, and voluntarily. Accordingly, the government’s

motion to dismiss his appeal is DENIED, and the district judge’s final

determination that Hoobler was competent to enter into a plea agreement with the

       2
          Hoobler argues that the district judge erred by denying his request for another
evaluation by an independent psychiatrist. We review the district judge’s decision for abuse of
discretion. United States v. Nickels, 324 F.3d 1250, 1251-52 (11th Cir. 2003) (per curiam). A
credible two-month study already had found Hoobler competent; the judge held a competency
hearing and made the same determination. Additionally, Hoobler had provided a contradictory
report from an expert that he had hired, which the judge considered even after the hearing.
Therefore, the district judge acted within her discretion to prevent further delays in this case.

                                                19
government and to plead guilty is AFFIRMED.




                                    20
