                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 13-4594
                                    _____________

                           UNITED STATES OF AMERICA

                                            v.

                               FREDERICK H. BANKS,
                                                  Appellant
                                  _______________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                               (D.C. No. 2-04-cr-00176)
                       District Judge: Hon. Joy Flowers Conti
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 10, 2014

           Before: RENDELL, CHAGARES, and JORDAN, Circuit Judges.

                                  (Filed: July 11, 2014)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Frederick Banks appeals the revocation of his term of supervised release by the

United States District Court for the Western District of Pennsylvania. We will affirm.
I.     Background

       Banks was convicted of eight counts of mail fraud in December 2005 and

sentenced in 2006 to 63 months’ imprisonment (to be served consecutively to a separate,

already-imposed sentence) and 36 months of supervised release. We affirmed that

conviction and sentence. See United States v. Banks, 300 F. App’x 145, 147 (3d Cir.

2008). According to the U.S. Probation Office, within three months of his release from

prison in May 2013, Banks had committed wire fraud and aggravated identity theft, thus

violating the supervised-release condition that he not commit another crime. Probation

charged him accordingly, and the District Court, after an extensive violation hearing at

which Banks represented himself, revoked his supervised release and sentenced him to 14

months’ imprisonment to be followed by six months’ supervised release at a community

correctional center. This timely appeal followed.

II.    Discussion1

       Banks raises three arguments on appeal. First, he contends that the District Court

should not have found him competent to represent himself at the violation hearing, in

       1
         The District Court had subject matter jurisdiction under 18 U.S.C. §§ 3231 and
3583(e). We exercise jurisdiction over Banks’s appeal pursuant to 28 U.S.C. § 1291. We
review the sentencing decision of a district court for abuse of discretion, looking for
procedural error and then examining the sentence for substantive reasonableness. United
States v. Negroni, 638 F.3d 434, 443 (3d Cir. 2011). We review a district court’s factual
findings regarding competency for clear error. United States v. Leggett, 162 F.3d 237,
241 (3d Cir. 1998). For unpreserved issues, however, we review for plain error. Fed. R.
Crim. P. 52(b). Acknowledging that the legal landscape in our circuit is unclear as to
whether plain-error review applies to unpreserved challenges to competency findings and
sentencing procedures, the Government encourages us to so hold. Banks also seems to
concede that plain error applies to his competency challenge. But we nevertheless
decline the Government’s invitation and instead conclude that Banks’s arguments are
unpersuasive under any standard.
                                             2
spite of his own request to waive his right to counsel and proceed pro se. Second, he

argues that, because he is incompetent, the Court erred in finding that he possessed the

requisite mens rea to commit wire fraud and identity theft. Finally, he argues that the

Court committed procedural and substantive error in sentencing him because it failed to

take into account his mental illness.2 We will address each argument in turn.

       Banks’s argument that he was not competent to represent himself at the violation

hearing is unpersuasive. Once a trial court finds that a defendant knowingly, voluntarily,

and intelligently waives the right to counsel, that defendant generally must be permitted

to defend himself at trial. Faretta v. California, 422 U.S. 806, 835-36 (1975). But, by a

finding that the defendant “understands the nature of the criminal charges against him

and is able to assist in his defense of such charges,” Godinez v. Moran, 509 U.S. 389, 392

(1993) (internal quotation marks omitted), a trial court must still establish that the

defendant is both competent to stand trial and to represent himself. That competency

determination is entitled great deference: “[T]he trial judge, particularly one … who

presided over … [the defendant’s] competency hearing[] and his … trial[], will often

prove best able to make more fine-tuned mental capacity decisions, tailored to the

individualized circumstances of a particular defendant.” Indiana v. Edwards, 554 U.S.

164, 177 (2008).



       2
        It is unclear whether Banks is challenging the procedural or substantive
reasonableness of his sentence or both. Like the government, we will address both
issues. The government interprets Banks’s brief to also include an independent
sentencing argument concerning the additional term of supervised release. But Banks
makes no such argument, and we therefore will not reach it.
                                              3
       The District Court was well aware of Banks’s unusual claims, including his

assertion that the government had implanted “Voice to Skull” technology in his head.

Prior to Banks’s trial on the underlying mail-fraud charges, it had presided over a

competency hearing where it allowed him to represent himself, which decision we

affirmed on appeal. See Banks, 300 F. App’x at 148. Based on its experience in those

proceedings, the Court ordered a psychiatric evaluation of Banks prior to the violation

hearing. Afterward, it held another competency hearing where the evaluating doctor

testified and the Court questioned Banks. The doctor stated that Banks was mentally ill

but ultimately able to “waive his right to counsel and proceed pro se … [because h]e has

intact cognitive functioning in many respects, especially outside of the area of …

electronic harassment[, the subject of his paranoia].” (Supp. App. at 1, 8-9.) The doctor

was also satisfied that Banks’s mental issues would not render him unable to represent

himself, and, notably, Banks’s counsel “defer[red] to [the doctor]’s expert report” when

asked whether he believed that Banks was competent to waive his right to counsel and

proceed pro se. (App. Vol. II at 46.) This finding is in line with the Supreme Court’s

view that “[m]ental illness … is not a unitary concept … [but] interferes with an

individual’s functioning at different times in different ways.” Edwards, 554 U.S. at 175;

see also United States v. Leggett, 162 F.3d 237, 244 (3d Cir. 1998) (noting that “[i]t does

not follow that because a person is mentally ill [that person] is not competent to stand

trial” (alterations in original) (internal quotation marks omitted)). After a review of the

record, we find that the District Court, which was in the best position to (twice) evaluate



                                              4
Banks’s faculties, did not commit clear error in deeming Banks competent after relying

on the evaluating doctor’s report and testimony.3

       The District Court also correctly found that Banks possessed the required mens rea

to commit the crimes constituting his supervised-release violations. Banks’s argument

either boils down to an insanity defense that he had the burden of proving or an attempt

to negate the specific intent related to his crimes. See United States v. Pohlot, 827 F.2d

889, 905-06 (3d Cir. 1987) (citing 18 U.S.C. § 17) (approving both insanity defense and

negating mens rea as valid methods of using mental disease to defend against criminal

prosecutions). Because he failed to proffer any evidence of insanity and because the

record is devoid of anything to rebut the evidence that his mental condition did not

interfere with his capacity for conscious action, his argument fails.

       Finally Banks cannot point to any procedural or substantive defect in his sentence.

We review sentencing decisions in two steps. First, we “ensure that the district court

committed no significant procedural error.” United States v. Wise, 515 F.3d 207, 217 (3d

Cir. 2008). A common challenge to a sentencing procedure is, for example, to attack the

sufficiency of the court’s review of the factors enumerated in 18 U.S.C. § 3553(a). E.g.,

United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). We then review for

       3
         We note that a defendant charged with violating a condition of supervised release
has limited due process rights. See Morrissey v. Brewer, 408 U.S. 471, 480 (1972)
(holding that revocation of parole does not impinge upon “absolute liberty” but only on
“the conditional liberty properly dependent on observance of special parole restrictions”);
see also United States v. Manuel, 732 F.3d 283, 291 (3d Cir. 2013) (holding that “there is
no constitutional right to representation by counsel at a parole revocation”). But we need
not decide whether a less-stringent process applies for determining whether Banks
knowingly waived his right to counsel because even the full panoply of constitutional
protections cannot support his argument.
                                              5
substantive reasonableness, looking at “the totality of the circumstances.” Id. at 567. We

will affirm a sentence as substantively reasonable “unless no reasonable sentencing court

would have imposed the same sentence on that particular defendant for the reasons the

district court provided.” Id. at 568. If a sentence is within the range of reasonable

alternatives set by the U.S. Sentencing Guidelines Manual, we may apply a presumption

of reasonableness to it. Id. at 575.

       Although Banks concedes that the Court addressed his mental illness prior to

imposing sentence, he nonetheless contends that it did not properly consider his condition

under 18 U.S.C. § 3553(a). There is, however, nothing in the record to suggest that the

Court’s § 3553 analysis was procedurally defective. The Court acknowledged that Banks

had psychiatric problems but echoed the evaluating doctor’s conclusion that it was not

“the direct cause of [Banks] engaging in [his] fraudulent activity.” (App. Vol. II at 274.)

Indeed, it is plain that the Court thoroughly considered all of the § 3553(a) factors in

fashioning an appropriate sentence for Banks. That the Court sentenced him within the

Sentencing Guidelines’ recommended range further indicates the reasonableness of the

sentence. Therefore, the District Court did not abuse its discretion.

III.   Conclusion

       We will accordingly affirm the District Court’s judgment of sentence.




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