                                             FILED: February 17, 2009

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT

                        ___________________

                            No. 07-4117
                        (1:04-cr-00255-BEL)
                        ___________________


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee

v.

JERRY LEE JENKINS,

                     Defendant - Appellant

                        ___________________

                             O R D E R
                        ___________________

     The Court amends its opinion filed February 17, 2009, as

follows:

     On the title page, the district court case number is

amended by substituting “cr” for “cv.”

                              For the Court--By Direction

                              /s/ Patricia S. Connor, Clerk
                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4117


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JERRY LEE JENKINS,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Benson Everett Legg, Chief District
Judge. (1:04-cr-00255-BEL)


Submitted:    January 30, 2009              Decided:   February 17, 2009


Before MOTZ, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Raymond J. Rigat, Washington, D.C., for Appellant. Rod   J.
Rosenstein, United States Attorney, James G. Warwick, Tonya
Kelly Kowitz, Assistant United States Attorneys, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Jerry Lee Jenkins was convicted by a jury of one count

of    bank    robbery,   in    violation        of   18    U.S.C.    §   2113(a),        (f)

(2006), and was sentenced to 210 months of imprisonment.                                  On

appeal, he argues that the district court erred in failing to

order sua sponte a mental competency hearing.                       Finding no error,

we affirm.

              Whether    the   district         court     should    have      sua    sponte

ordered      a   competency     hearing     is       reviewed      for   an    abuse     of

discretion.       United States v. General, 278 F.3d 389, 396 (4th

Cir. 2002).       A district court must determine if “[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.”             Dusky v. United States, 362 U.S. 402,

402 (1960).        The defendant shall be considered incompetent if

the district court finds, “by a preponderance of the evidence

that the defendant is presently suffering from a mental disease

or defect rendering him mentally incompetent to the extent that

he is unable to understand the nature and consequences of the

proceedings against him or to assist properly in his defense.”

18 U.S.C. § 4241(d) (2006).              The defendant bears the burden of

establishing his incompetence.                  United States v. Robinson, 404

F.3d 850, 856 (4th Cir. 2005).

                                            2
              Jenkins’        statements         indicate          that       he    is    among        a

growing    number       of    prisoners         adhering      to    a     “flesh      and    blood”

sovereign man philosophy.              See United States v. Mitchell, 405 F.

Supp. 2d 602, 603-06 (D. Md. 2005) (describing the theory, its

sources,      and       its     anti-government               movement             predecessors).

Adherence to an ill-advised, self-defeating legal strategy does

not   indicate      incompetence           to    stand     trial.          United        States       v.

Banks,     482     F.3d       733,    743        (4th      Cir.     2007).               Competency

determinations          turn    only        on       the     defendant’s            capacity          to

understand       the    proceedings,            the     capacity         to    assist       in    his

defense, and the capacity to communicate with counsel, and not

on his willingness to do so.                     See Bell v. Evatt, 72 F.3d 421,

432 (4th Cir. 1995).

              Jenkins’ filings with the court and statements to the

court indicate that Jenkins was able to articulate his, albeit

unconventional, legal strategy.                      His choice to pursue the flesh

and   blood      defense      was    not    indicative         of    a    mental         defect       or

incompetence.          Although the court strongly recommended that the

Bureau of Prisons assess Jenkins for suspected bipolar disorder,

nothing    in     the    record      indicates          that      such        illness     rendered

Jenkins incompetent to stand trial or be sentenced.                                       Further,

although    Jenkins       highlights         his      drug    and    alcohol         abuse       as    a

contributing        factor      to    incompetence,            there          is    no    evidence

demonstrating that the abuse rendered him incompetent.

                                                 3
            Accordingly,         we    conclude       that    the   district     court’s

failure     to    hold    a   hearing         sua    sponte    on     Jenkins’     mental

competency       was    not   an      abuse    of     discretion      and   affirm    the

judgment.          We     deny        Jenkins’       motion     for     a    competency

determination on appeal and pro se motion to dismiss counsel.

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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