14-4740-cr
United States v. Washington

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
16th day of June, two thousand sixteen.

Present:    ROSEMARY S. POOLER,
            RAYMOND J. LOHIER, JR.,
            SUSAN L. CARNEY,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                Appellee,

                         v.                                                14-4740-cr

KIRK BENT, AKA MEGA,

                                Defendant,

RANDY WASHINGTON, AKA SEALED DEFENDANT 1,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:        David Gordon, New York, NY.

Appearing for Appellee:         Telemachus Kasulis, Assistant United States Attorney (Christopher
                                DiMase and Margaret Garnett, Assistant United States Attorneys,
                                on the brief), for Preet Bharara, United States Attorney for the
                                Southern District of New York, New York, NY.
        Appeal from the United States District Court for the Southern District of New York
(Sullivan, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Randy Washington appeals from a judgment of conviction entered on December 19,
2014, in the United States District Court for the Southern District of New York (Sullivan, J.),
following a one-week jury trial. Washington was convicted of various robbery, drug, and gun
crimes and sentenced principally to 27 years’ imprisonment. Before sentencing, the district court
denied Washington’s post-trial motion, which alleged that he was incompetent to engage in plea
negotiations and had received ineffective assistance of counsel. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

       On appeal, Washington first argues that the district court, in denying his post-trial
motion, erred in failing to find that Washington was incompetent to engage in plea negotiations.
“We will uphold a district court’s [competency] finding unless clearly erroneous.” United States
v. Nichols, 56 F.3d 403, 411 (2d Cir. 1995).

        The Due Process Clause requires that a defendant be competent to stand trial. United
States v. Arenburg, 605 F.3d 164, 168 (2d Cir. 2010). The test for determining whether a
defendant is competent is “whether he 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). This standard applies both to a defendant’s competency to stand trial and to his
competency to plead guilty. Godinez v. Moran, 509 U.S. 389, 399 (1993). The court determines
competency by a preponderance of the evidence. Nichols, 56 F.3d at 410.

        The district court did not clearly err in concluding that Washington was competent to
engage in plea negotiations. Neither of the two psychologists who examined Washington
concluded that he was incompetent to engage in plea negotiations. To the contrary, Dr. Sanford
Drob concluded that Washington was “competent to proceed to sentencing” and had “no
indication that he was not competent to proceed at the time of his trial.” App’x at 65, 71. As
noted, the standards for competence to stand trial and competence to plead guilty are the same.
Godinez, 509 U.S. at 399. Dr. Drob also concluded that Washington was capable of “cooperating
with counsel,” App’x at 65, and Dr. William Barr explained how Washington was “able to
describe the concept of plea bargaining,” including “the advantages received by both the
defendant and the prosecutors in a hypothetical plea situation,” App’x at 77. Although both
psychologists expressed a concern that Washington may have had an “unrealistic view of the
evidence against him, his chances of prevailing at trial, and the consequences he would face if
convicted,” App’x at 71, 81, this is not the same as finding Washington incompetent. See Dusky,
362 U.S. at 402. Moreover, the district court stated that its own observations of Washington—at
his arraignment, during the six-day trial, and at various court proceedings before and after trial—
“mirror[ed] Dr. Drob’s and Dr. Barr’s findings as to [Washington’s] competence to engage in
plea negotiations and stand trial.” App’x at 144. In view of these facts, the district court did not
clearly err in determining that Washington was competent to engage in plea negotiations.


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       Washington further contends that, at a minimum, the district court should have held an
evidentiary hearing on the issue. We review a district court’s decision whether to hold an
evidentiary hearing on the issue of competency for abuse of discretion. Arenburg, 605 F.3d at
169.

       “At any time after the commencement of a prosecution for an offense and prior to the
sentencing of the defendant . . . the defendant . . . may file a motion for a hearing to determine
the mental competency of the defendant.” 18 U.S.C. § 4241(a). The district court “shall grant the
motion . . . if there is reasonable cause to believe that the defendant may presently be 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.” Id. “Neither the federal statute governing competency determinations,
18 U.S.C. § 4241, nor the Due Process Clause requires a hearing in every instance; a hearing is
required only if the court has ‘reasonable cause’ to believe that the defendant has a mental defect
rendering him incompetent.” Nichols, 56 F.3d at 414. In deciding that an evidentiary hearing is
necessary, a court may rely on “many factors,” Arenburg, 605 F.3d at 169 (internal quotation
marks omitted), including reports from psychologists and the court’s own observations, see
Nichols, 56 F.3d at 414.

        The district court did not abuse its discretion in declining to hold an evidentiary hearing
on the competency issue. The district court ordered the psychological evaluations “out of an
abundance of caution” despite its “own observations suggesting that [Washington] was and
remained competent.” App’x at 146. Because the evaluations “only confirmed [Washington’s]
competence,” the court concluded that an evidentiary hearing was unnecessary. App’x at 146.

        Washington next argues that the district court erred in rejecting his ineffective assistance
of counsel claim. See Strickland v. Washington, 466 U.S. 668 (1984). He contends that his trial
counsel was constitutionally ineffective in failing to show him a draft plea agreement and advise
him that, under the proposed plea agreement, Washington could be sentenced to as little as seven
years’ imprisonment and that he would have the right to appeal any sentence that exceeded the
Guidelines range. We review a district court’s findings of fact in connection with ineffective
assistance claims for clear error. Chhabra v. United States, 720 F.3d 395, 407 (2d Cir. 2013). We
review de novo the district court’s “ultimate rulings as to Strickland’s components[] and its
ultimate decision as to whether counsel’s performance violated the defendant’s Sixth
Amendment rights.” Id.

        The Sixth Amendment guarantees criminal defendants the right to effective assistance of
counsel. Strickland, 466 U.S. at 686. This right extends to the plea-bargaining process. Lafler v.
Cooper, 132 S. Ct. 1376, 1384 (2012). To be entitled to relief on a claim of ineffective
assistance, a “defendant must show that counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687.

        To show prejudice, a defendant must demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at
694. In the plea-bargaining context, the defendant must show that “but for the ineffective advice
of counsel there is a reasonable probability that the plea offer would have been presented to the

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court (i.e., that the defendant would have accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances), that the court would have accepted its terms,
and that the conviction or sentence, or both, under the offer’s terms would have been less severe
than under the judgment and sentence that in fact were imposed.” Lafler, 132 S. Ct. at 1385. To
demonstrate prejudice, a defendant may not rely solely on his own, self-serving statement post-
verdict that he would have accepted a more favorable plea deal. See Raysor v. United States, 647
F.3d 491, 495 (2d Cir. 2011). Rather, the statement must be accompanied by some “objective
evidence” that supports an inference that the petitioner would have accepted the proposed plea
offer if properly advised. Id. This “objective evidence” may include a significant sentencing
disparity between the sentence imposed and the sentence that effective counsel would have
obtained for the defendant. See United States v. Gordon, 156 F.3d 376, 381 (2d Cir. 1998);
Raysor, 647 F.3d at 495.

        The district court correctly concluded that Washington failed to demonstrate prejudice, as
he could not show that but for his counsel’s allegedly ineffective advice, there was a reasonable
probability that he would have accepted the plea offer. Washington admitted that his trial counsel
told him that the government was offering a plea deal that would result in “guidelines of
approximately ten years’ imprisonment,” App’x at 120, and he has not contested that he was
aware of the forty-two year disparity between the ten-year plea offer and the fifty-two year
mandatory minimum that would result from a guilty verdict at trial. Nonetheless, Washington
turned down the ten-year plea offer. We agree with the district court that “[Washington’s] claim
that the forty-two year disparity did not compel him to accept the plea offer but that a forty-five
year disparity would have is simply incredible.” App’x at 149. We further agree that it is “highly
improbable” that Washington would have taken the plea had he known that he could have
appealed a sentence exceeding the Guidelines range, App’x at 149, as “all available facts suggest
overwhelmingly that [Washington] still would have chosen to go to trial,” App’x at 149.

        Finally, the district court did not err in declining to hold an evidentiary hearing on the
issue of prejudice. We review the district court’s denial of a request for an evidentiary hearing
for abuse of discretion. United States v. Levy, 377 F.3d 259, 264 (2d Cir. 2004). Washington’s
claim of prejudice was implausible on its face, and he identifies no evidence that he could have
introduced at an evidentiary hearing that would have helped him establish prejudice.

       We have considered the remainder of Washington’s arguments and find them to be
without merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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