                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                No. 08-15176                  ELEVENTH CIRCUIT
                                                                  JUNE 3, 2009
                            Non-Argument Calendar
                                                               THOMAS K. KAHN
                          ________________________
                                                                    CLERK

                    D. C. Docket No. 04-00059-CR-5-MCR

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

ROGER V. EVANS,

                                                             Defendant-Appellant.


                          ________________________

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

                                  (June 3, 2009)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

     Roger V. Evans, a Florida state prisoner, pled guilty to threatening use of a
weapon of mass destruction, 18 U.S.C. § 2332a(a)(3); mailing a threatening

communication, 18 U.S.C. § 876(c); and assaulting a federal officer, 18 U.S.C. §

111(a). In Evans’ first appeal, we affirmed his convictions, but vacated his

sentence in part. United States v. Evans, 478 F.3d 1332, 1335–36 (11th Cir. 2007).

      On remand, Evans was initially found incompetent to be sentenced. Based

on an expert report, however, he was later found competent. At resentencing, he

received concurrent terms of 75 months’ imprisonment, to be served consecutive to

his current Florida state prison term.

      In this appeal, Evans argues that the district court clearly erred by finding

him competent to be resentenced. Appellate review is not available, however, if a

defendant waives an error. See United States v. Olano, 507 U.S. 725, 733, 113 S.

Ct. 1770, 1777 (1993); see also United States v. Horsfall, 552 F.3d 1275, 1283–84

(11th Cir. 2008) (per curiam), cert. denied, ___ S. Ct. ___, 2009 WL 789438

(2009) (U.S. Apr. 20, 2009) (No. 08-9396) (concluding that appellate review was

unavailable because the defendant waived any challenge to an upward departure by

affirmatively withdrawing his prior objection to the departure).

      Here, the district court allowed defense counsel to comment on the expert

report. But counsel affirmatively declined to dispute Evans’ competency. Evans

did not want counsel to raise the issue, and Evans considered himself competent.



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      Evans was also given an opportunity to speak at resentencing. He did not

dispute his competency or counsel’s waiver of the issue, and the court found him

competent. Consequently, Evans waived appellate review of the district court’s

competency finding.

      Even assuming arguendo that Evans did not waive appellate review, the

district court did not clearly err by finding him competent to be resentenced. A

defendant’s competency “is an ongoing inquiry; the defendant must be competent

at all stages of trial,” including sentencing. United States v. Rahim, 431 F.3d 753,

759 (11th Cir. 2005) (per curiam). “For a defendant to be competent . . . , he must

have ‘sufficient present ability to consult with his lawyer with a reasonable degree

of rational understanding . . . [and] ha[ve] a rational as well as factual

understanding of the proceedings against him.’” Id. A defendant’s competency is

determined by a preponderance of the evidence. 18 U.S.C. § 4241(d), (e).

      Although Evans’ competency was apparently a close issue, the expert

concluded that Evans would be competent if he himself did not speak at his

sentencing. The expert was concerned that if Evans allocuted, Evans would reveal

his delusional beliefs. Evans, in fact, did not allocute at resentencing. He also,

according to defense counsel, understood the proceedings, why he was there, and

the history of his case.



                                            3
      Moreover, the expert report itself supported the district court’s finding of

competency. Although it suggested that Evans believed, based on his paranoia and

delusional beliefs, that he would be less likely than others to be treated fairly by the

judicial system, it indicated that he understood the nature and potential

consequences of the proceedings against him and the roles of the various

individuals in the courtroom. A competency test also showed that Evans had little

or no impairment in his understanding of legal proceedings and reasoning. Thus, a

preponderance of the available evidence supports the district court’s finding that

Evans was competent to be resentenced.

      After carefully reviewing the record and studying the parties’ briefs, we

discern no reversible error. We conclude that even if Evans had preserved

appellate review of the district court’s finding, its finding of competency is not

clearly erroneous. Accordingly, we affirm Evans’ 75-month total sentence.

      AFFIRMED.




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