                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                      FILED
                           ________________________          U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                   October 17, 2006
                                 No. 05-15432                    THOMAS K. KAHN
                             Non-Argument Calendar                   CLERK
                           ________________________

                        D. C. Docket No. 04-60216-CR-JIC

UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                       versus

KELLY RAY JONES,

                                                               Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          _________________________

                                (October 17, 2006)

Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:

      Kelly Ray Jones appeals his 293-month sentence imposed after pleading

guilty to (1) conspiracy to possess material containing a visual depiction of a minor
engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B) and

(b)(2), and (2) conspiracy to obstruct justice, in violation of 18 U.S.C. § 1512(b),

(c), and (k). Specifically, Jones contends that the district court erred in finding that

he was competent to proceed to sentencing and in calculating his base offense level

under the advisory sentencing guidelines. After review, we affirm the competency

determination and dismiss the sentencing challenge based on Jones’s sentence-

appeal waiver.

                                 I. BACKGROUND

      In July 2004, the St. Lucie County Sheriff’s Office obtained arrest and

search warrants for Jones and his residence following a month-long investigation

into child pornography transmissions. During the investigation, police enlisted the

help of a cooperating individual and used his e-mail account to communicate with

Jones, who sent an e-mail message containing two sexually explicit images

involving minors. Following Jones’s arrest, an examination of Jones’s computer

revealed at least 10 but fewer than 150 images of child pornography.

      While incarcerated in the St. Lucie County Jail, Jones made over seventy

telephone calls to his boyfriend, Kenneth Wilk. During the calls, Jones asked Wilk

to delete e-mails, destroy computer disks containing evidence, cancel his cellular

telephone service, and intimidate one of the prosecution witnesses to discourage



                                           2
him from testifying.

A.    Guilty Plea

      On October 21, 2004, Jones pled guilty to the charges of conspiracy to

possess child pornography and conspiracy to obstruct justice. In his written plea

agreement, Jones agreed that he would be sentenced in conformity with the federal

sentencing guidelines; that the court had authority to impose any sentence up to the

statutory maximum; and that he waived the right to appeal his sentence with

certain exceptions. The sentence-appeal waiver contained only three exceptions:

(1) a sentence exceeding the statutory maximum; (2) an upward departure from the

guidelines range; and (3) a government appeal of the sentence.1

      During the change-of-plea hearing in October 2004, the district court

explained the sentence-appeal waiver to Jones and specifically questioned whether

he understood the waiver and the three exceptions that would release him from it.

After Jones indicated that he fully understood the waiver terms and had discussed


      1
          Specifically, the sentence-appeal waiver stated, in relevant part:
                 [T]he defendant hereby waives all rights conferred by Section 3742 to appeal
                 any sentence imposed, . . . or to appeal the manner in which the sentence was
                 imposed, unless the sentence exceeds the maximum permitted by statute or
                 is the result of an upward departure from the guidelines range that the court
                 establishes at sentencing. . . . However, if the United States appeals the
                 defendant’s sentence pursuant to Section 3742(b), the defendant shall be
                 released from the above waiver of appellate rights . . . . By signing this
                 agreement, the defendant acknowledges that he/she has discussed the appeal
                 waiver set forth in this agreement with his/her attorney. . . .


                                                  3
them with his counsel, the district court found a knowing and intelligent waiver of

Jones’s appellate rights.

      Upon further questioning by the district court, Jones indicated that he had

been treated for mental illness and narcotic addiction in the prior year and was

taking medication for AIDS, depression, and anxiety, which he had taken the

previous night. Jones stated that he did not believe that the medications interfered

with his ability to think and understand. Jones further confirmed that no mental or

physical condition impeded his understanding of the proceedings. Furthermore,

Jones said that he had never been found incompetent by a court of law. Jones’s

counsel also stated that he thought Jones was competent to enter a plea. After

confirming that Jones understood the charges against him and was satisfied with

his counsel’s representation, the district court found Jones “fully competent and

capable of entering an informed plea,” and accepted his guilty plea.

B.    Motion to Withdraw Plea

       In December 2004, the magistrate judge permitted Jones’s original counsel

to withdraw and appointed new counsel for Jones. Two months later, Jones filed a

motion to withdraw his guilty plea, contending that his original counsel was

ineffective and that he was suffering from significant mental impairments when he

entered the plea.



                                          4
      At the initial evidentiary hearing on this motion, Jones’s new counsel

requested a court-appointed expert to evaluate Jones’s competency and advised the

district court that Jones suffered from “absolute breakdowns,” during which he was

unable to communicate with his counsel. The district court indicated that it had

observed Jones’s composed demeanor during the plea colloquy and determined

that Jones fully comprehended the proceedings. Jones testified that he did not

know what he was doing when he pled guilty. His previous counsel, however,

testified that Jones willingly entered into the plea and was lucid throughout

discussions about the plea.

      On the second day of the hearing, Jones moved to withdraw his motion to

withdraw the guilty plea. The district court advised Jones of the consequences of

withdrawing his motion, particularly that he could not later claim to have been

incompetent when he entered the guilty plea. After the district court questioned

whether Jones fully understood these consequences, Jones repeatedly indicated his

understanding and his desire to discontinue the evidentiary hearing.

      In order to ensure that Jones was competent, the district court appointed Dr.

Lori Butts, Ph.D., a psychologist, to conduct a competency evaluation of Jones.

Based on its observations of Jones at the plea colloquy and his testimony at the

evidentiary hearing, the district court then granted Jones’s request to withdraw his



                                          5
motion to withdraw the guilty plea, assuming a finding of competence by the

mental health expert.

C.    Competency Evaluation

      During her evaluation of Jones, Dr. Butts considered previous medical

records, tested memory malingering, and conducted clinical interviews with Jones

over two days. Dr. Butts did not review background material on Jones, such as the

transcript of his plea colloquy. Although Dr. Butts noted that Jones was more

capable than he presented and “the index of suspicion for malingering is high,” she

offered a qualified, advisory clinical opinion that Jones was not competent to

proceed based on possible impairment of his cognitive abilities. Dr. Butts

recommended more comprehensive testing to determine whether Jones was

malingering.

      In response, the district court ordered a comprehensive evaluation. Dr. Jorge

Luis, Ph.D., a forensic psychologist, then conducted a month-long psychological

evaluation of Jones with a battery of tests, clinical interviews, and reviews of

prison records. Dr. Luis also studied letters written from Jones to Wilk in

September 2001 and June 2002 while Jones was in custody on other charges. In

these letters, Jones indicated that he wanted to fake dementia for purposes of trial.

In addition, all three objective tests administered to detect malingering indicated



                                           6
that Jones was a malingerer. Based on his evaluation, Dr. Luis concluded that

Jones was competent to proceed.

       At the competency hearing, both parties stipulated to the contents of Dr.

Butts’s and Dr. Luis’s reports. The government also introduced into evidence the

September 2001 and June 2002 letters documenting Jones’s desire to fake

dementia. Although Jones did not contest these letters or the findings in Dr. Luis’s

report, Jones contended that Dr. Luis did not evaluate all of Jones’s prior

psychological reports or make any conclusion on AIDS-related dementia. The

district court found Dr. Luis’s evaluation, the plea colloquy, and its own

observations of Jones in prior proceedings “much more persuasive than the

equivocal report and evaluation of Dr. Butts. . . .” As a result, the district court

determined by a preponderance of the evidence that Jones was competent to

proceed to sentencing.

D.     Sentencing Hearing

       At the sentencing hearing, the district court indicated that it had received

additional neurological reports conducted under court-ordered testing. These

reports indicated that Jones may have lesions on both hemispheres of his brain and

may be suffering from Marfan Syndrome,2 but the reports concluded that Jones

       2
        Marfan Syndrome is a hereditary connective tissue disorder. The
government noted that this opinion was based only on Jones’s verbal complaint and
was not the result of objective testing.

                                              7
was competent to proceed. Dr. Luis testified that he had administered an objective

Booklet Category Test, which indicated a below average score for Jones but no

organic brain damage.

      The district court next considered the presentence investigation report. The

district court first overruled Jones’s objection to the use of the cross-reference

provision in U.S.S.G. § 2G2.2 and found that Jones’s activity amounted to child

pornography trafficking. The court then denied (1) an acceptance of responsibility

reduction pursuant to U.S.S.G. § 3E1.1 because Jones’s conduct after entering the

plea was inconsistent with accepting responsibility and (2) a requested downward

departure for diminished capacity pursuant to U.S.S.G. § 5K2.13 because such

departures were precluded in cases involving sexual contact with children. The

district court noted that it had considered the sentencing factors in 18 U.S.C. §

3553(a) in determining Jones’s sentence.

      After resolving these objections, the district court determined that Jones had

an offense level of thirty-four and a criminal history category of V, which resulted

in an advisory guidelines range of 235 to 293 months’ imprisonment. The district

court ultimately sentenced Jones to a term of 173 months’ imprisonment on the

child pornography charge and a consecutive term of 120 months’ imprisonment on

the obstruction-of-justice charge, resulting in a total sentence of 293 months’



                                           8
imprisonment with a lifetime of supervised release. This appeal followed.

                                      II. DISCUSSION

A.     Competency to Proceed to Sentencing

       On appeal, Jones argues that the district court erred in finding him

competent to proceed to sentencing.3 The Due Process Clause of the Fifth

Amendment prohibits the government from trying a defendant deemed

incompetent. United States v. Rahim, 431 F.3d 753, 759 (11th Cir. 2005), cert.

denied, __ U.S. __, 126 S. Ct. 1280 (2006). In order to be considered competent

for trial, a defendant must have “‘sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding,’” and he must have a

“‘rational and factual understanding of the proceedings against him.’” Wright v.

Sec’y for Dep’t of Corr., 278 F.3d 1245, 1256 (11th Cir. 2002) (citation omitted).

       When a district court is faced with conflicting expert reports, it “does not

clearly err simply by crediting one opinion over another where other record

evidence exists to support the conclusion.” Battle v. United States, 419 F.3d 1292,

1299 (11th Cir. 2005) (affirming a district court’s finding of competence despite


        3
          We review a district court’s determination of a defendant’s competency to stand trial for
clear error. United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006). A district court’s
findings of fact are clearly erroneous “only when we are left with a definite and firm conviction
that a mistake has been committed.” Id. at 1278 (quotation marks and citation omitted). We
review the district court’s denial of a defendant’s request for additional competency testing for
an abuse of discretion. United States v. Nickels, 324 F.3d 1250, 1251 (11th Cir. 2003).

                                                 9
differing expert opinions on the defendant’s competence).

       Although Dr. Butts provided a qualified advisory opinion that Jones was not

competent, it was not clearly erroneous for the district court to favor the more

comprehensive report from Dr. Luis, which concluded that Jones was competent to

proceed. First, Dr. Luis’s month-long evaluation of Jones, featuring a series of

clinical interviews and objective psychological tests, was significantly lengthier

than Dr. Butts’s initial two-day evaluation. See United States v. Izquierdo, 448

F.3d 1269, 1278-79 (11th Cir. 2006) (finding no clear error where the district court

favored an expert opinion based on months of evaluation over a conflicting expert

evaluation conducted over two days). Second, Dr. Luis considered a broader array

of factors and utilized more resources in forming his expert opinion than did Dr.

Butts.4 Finally, Dr. Butts’s conclusion was equivocal at best—despite her

“qualified” advisory opinion that Jones was incompetent, she noted that “suspicion

for malingering is high” and recommended more extensive testing to verify her

findings. Dr. Luis conducted the more extensive evaluation and provided the

definitive conclusion that Jones was competent.5 Accordingly, we cannot conclude
        4
         Although Jones argues that Dr. Luis’s report should not be credited because it did not
consider Jones’s prior psychological reports, he does not explain how these prior reports would
have affected Dr. Luis’s findings. Furthermore, even if these reports indicated a prior history of
mental illness, past mental illness does not mandate a finding of incompetence. See Battle, 419
F.3d at 1299.
       5
         The additional neurological report that Jones might have brain lesions does
not cast doubt on Dr. Luis’s conclusion because this additional opinion also found
Jones competent to proceed. No objective medical tests were conducted to support

                                                10
that the district court committed clear error in crediting Dr. Luis’s finding of

Jones’s competence.

       The district court’s observations of Jones’s conduct in the plea colloquy also

support its finding that Jones was competent. The court noted Jones’s composed

demeanor and rational responses to its inquiries, during which Jones indicated that

he fully understood the proceedings and plea agreement. Jones’s counsel at the

plea colloquy also stated that Jones was lucid during his discussions about the plea

agreement, and counsel indicated that he thought Jones was competent. Even if

Jones was at times uncommunicative with his counsel, periods of

uncooperativeness alone are insufficient to support a finding of incompetence. See

Battle, 419 F.3d at 1299 (affirming the district court’s finding of competence

despite the defendant’s antagonistic relationship with his counsel).

       Jones’s argument that the district court should have requested additional

testing is also meritless. A court may order additional psychological testing if it

“desires more information than is otherwise available to it as a basis for

determining the mental condition of the defendant. . . .” 18 U.S.C. § 3552(c). In

this case, Jones underwent an initial competency examination by Dr. Butts, a

comprehensive month-long evaluation by Dr. Luis, and further neurological testing


the report of possible lesions. In contrast, Dr. Luis administered an objective Booklet
Category Test that indicated no organic brain damage.

                                                11
conducted after the competency hearing. Because the district court had ample

information from which to determine Jones’s competency and decided that it

needed no additional studies, we conclude that it did not abuse its discretion in

denying Jones’s request for additional testing.

      For all these reasons, the district court did not err in finding Jones competent

to proceed to sentencing.

B.    Sentence-Appeal Waiver

      Jones also argues that the district court erred in sentencing by (1) improperly

applying the cross-reference provision of U.S.S.G. § 2G2.2; (2) refusing to grant

him an acceptance of responsibility reduction; (3) denying a downward departure

for diminished capacity; and (4) double-counting sentencing factors under 18

U.S.C. § 3553(a). In response, the government submits that Jones’s plea

agreement contained a valid sentence-appeal waiver and thus his appeal of his

sentence must be dismissed.

      The validity of a sentence-appeal waiver is a question of law that we review

de novo. United States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004). We

have consistently held that a sentence-appeal waiver is valid if a defendant enters

into it knowingly and voluntarily. United States v. Bascomb, 451 F.3d 1292, 1294

(11th Cir. 2006) (citing cases). In order to establish that the waiver was knowing



                                          12
and voluntary, the government must demonstrate that either “‘(1) the district court

specifically questioned the defendant about the waiver during the plea colloquy, or

(2) the record clearly shows that the defendant otherwise understood the full

significance of the waiver.’” United States v. Grinard-Henry, 399 F.3d 1294, 1296

(11th Cir.) (citation omitted), cert. denied, 544 U.S. 1041, 125 S. Ct. 2279 (2005).

      At the plea colloquy, the district court specifically questioned Jones about

the sentence-appeal waiver, explained the limited exceptions in which he could

potentially appeal his sentence, and asked for confirmation that he understood the

waiver. Jones indicated that he fully understood the waiver and had discussed it

with counsel. The district court made an explicit finding that Jones knowingly and

intelligently waived his appellate rights. The waiver’s plain language also included

a confirmation that Jones had discussed the matter with his counsel. Furthermore,

based on our conclusion that the district court did not err in its competency

determination, Jones cannot argue that he was incompetent to waive his right to

appeal. We thus conclude that Jones’s sentence-appeal waiver was knowing and

voluntary, barring his right to appeal his sentence unless an exception applies.

      Jones’s sentence appeal does not fall within any of the three exceptions in

his plea agreement. First, his sentence does not exceed the statutory maximum

term, which is the “longest sentence that the statute which punishes a crime permits



                                          13
a court to impose, regardless of whether the actual sentence must be shortened in a

particular case because of the principles involved in the Apprendi/Booker line of

decisions.” United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir.), cert. denied,

__ U.S. __, 126 S. Ct. 416 (2005). Here, Jones received the statutory maximum of

120 months’ imprisonment for the obstruction of justice charge and a 173-month

sentence for the child pornography charge, below the statutory maximum of 20

years’ imprisonment. Second, there was no upward departure from the guidelines

range—Jones received a 293-month sentence, the upper limit of the advisory

guidelines range for his offense level and criminal history. Finally, the

government did not appeal his sentence. Because Jones waived his right to appeal

his sentence and his grounds for appeal do not fall under any of the waiver

exceptions, we dismiss his challenges to his sentence.

                                III. CONCLUSION

      For the foregoing reasons, we affirm the district court’s finding of Jones’s

competence and dismiss his appeal of his sentence.

      AFFIRMED IN PART, DISMISSED IN PART.




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