                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-1938
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                    Sean Washington, also known as Lil Folk

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                    Appeal from United States District Court
                         for the District of Minnesota
                                 ____________

                             Submitted: May 15, 2020
                              Filed: August 4, 2020
                                  ____________

Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
                             ____________

MELLOY, Circuit Judge.

        After the district court1 found Defendant Sean Washington competent to stand
trial, he pleaded guilty to one count of conspiring to distribute cocaine base and


      1
        The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota, adopting the Report and Recommendation of the Honorable
David T. Schultz, United States Magistrate Judge for the District of Minnesota.
heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court imposed a
below-Guidelines-range sentence of 160 months’ imprisonment. On appeal,
Washington challenges the competency determination, the determination of his
advisory Guidelines sentencing range, and the substantive reasonableness of the
ultimate sentence imposed. We affirm.

                                          I.

      Washington has an extensive history of gang violence and drug offenses. This
history includes a murder conviction and several instances of gun violence as a
shooter and a victim. By the time of the events surrounding the current offense,
Washington was using a wheelchair due to spinal injuries from a bullet. In addition,
he was shot in the head in 2009 and still has metal fragments in his head from that
shooting. Shortly after the 2009 shooting, his resulting cognitive impairments were
described as “mild to moderate.”

       Authorities conducted a wide-reaching investigation between 2016 and 2017
into a violent gang-related drug distribution conspiracy in Minneapolis. The
investigation included many confidential informants, controlled buys, wiretaps,
search warrants and police-observed drug transactions. Evidence of Washington’s
personal involvement with the conspiracy included wire-tapped phone calls of
Washington receiving orders for drug deliveries or discussing drug supplies, his
direction of drug deliveries, and his participation in drug deliveries. In general the
final or retail element of the conspiracy operated as a sort of dispatch system with a
frequently replaced “dope phone” that would receive orders and direct deliveries.
Quantities involved during given periods of time were extrapolated from known
quantities of powder or crack cocaine, numbers of calls placed, resulting deliveries,
and known delivery quantities.




                                         -2-
      In February 2017, authorities executed a search warrant at a home Washington
had rented using false employment records. Washington shared the home with the
conspiracy’s ultimate leader. During execution of the warrant, Washington was
present with drugs, cash, scales, and other drug paraphernalia. Washington was
found in bed with his wheelchair positioned next to the bed and with a loaded pistol
located under the wheelchair’s seat cushion. The pistol was positioned so that
Washington could have retrieved it by the grip when sitting in the chair. A shell
casing from the same pistol had been located outside the home of another member of
the conspiracy.

       Washington was not taken into custody until later, August 20, 2017, after he
checked into a hospital in Iowa. After being taken into custody, Washington had
interactions with several different judicial officials and his case progressed
substantially prior to any party suggesting a competency exam might be appropriate.
In Iowa, he met with a pretrial services officer and appeared before a federal
magistrate judge. He was informed of his rights and the charges from Minnesota, and
he waived a preliminary hearing and detention hearing. After being transported to
Minnesota, he appeared before a different federal magistrate judge for an initial
appearance on September 19, and was represented by counsel from the office of the
Federal Public Defender. Then, on September 21, at an arraignment and detention
hearing, he was represented by attorney John Hughes who continues to represent him.
At the hearing, Washington responded to the magistrate judge’s questions and
confirmed he had reviewed his indictment with his attorney. At a November 21
hearing on a motion to suppress, in front of a third federal magistrate judge, counsel
raised the issue of having difficulty obtaining physical therapy for Washington. At
that time, counsel suggested Washington’s memory might be “challenged,” but
counsel did not raise the issue of competency.




                                         -3-
        Then, in December, counsel arranged for a neuropsychological evaluation for
Washington with privately retained psychologist Dr. Norman Cohen. Dr. Cohen met
and evaluated Washington for a day and sent an unsigned report to counsel. In the
report, Dr. Cohen concluded Washington could think logically, but had low
intelligence and thought in a concrete manner with limited sophistication. Dr. Cohen
ultimately considered the testing results he obtained to be valid, but he did not offer
an opinion in terms of Washington’s ability to understand his charges or the
proceedings against him or his ability to communicate with his attorney or assist in
his defense. Rather, Dr. Cohen concluded Washington’s performance was “consistent
with that of a vulnerable adult and [a] guardianship appears appropriate.”

      On January 8, 2018, the third magistrate judge issued a report and
recommendation denying Washington’s motion to suppress, and Washington
objected. On January 25, Washington sent a letter to the court withdrawing his
objections and informing the court he had reached a plea agreement. By that time all
conspirators other than Washington and the ultimate leader had pleaded guilty.

       Then, at a February 6 hearing that was scheduled as a change-of-plea hearing,
Washington’s counsel instead moved for a competency hearing. The court ordered
an evaluation. Washington was transferred to a Federal Detention Center in a
different state for approximately forty days for an examination to determine if he was
“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(a).

      There, psychologist Dr. Cynthia Low served as Washington’s primary
examiner, but he also met with a psychiatrist and another psychologist. Dr. Low had
worked at the Federal Detention Center for over twenty years and had extensive
experience conducting competency evaluations. She conducted several clinical

                                         -4-
interviews with Washington over an extended period of time, conducted tests of
Washington’s abilities, and also administered tests to evaluate whether he was
malingering. In addition, she reviewed his medical and criminal histories and
reviewed recorded phone conversations, texts, and emails he sent to friends and
others while in the examination facility. In a comprehensive report dated April 17,
2018, she concluded unequivocally that Washington was malingering. In fact, Dr.
Low reported that, on certain tests, Washington scored so low that it was nearly
statistically impossible that he had merely gotten answers wrong. He had to have
known the correct answers and purposefully answered incorrectly to achieve such a
low score. She also noted his ability to interact naturally and at a natural pace in
private conversations. Finally, she noted his performance and apparent understanding
in discussions of his charges, the consequences of his charges, and the roles of judges
and attorneys. She ultimately concluded he could adequately understand the charges
and proceedings against him, and “did not suffer from a mental disorder that would
substantially impair his present ability to understand the nature and consequences of
the court proceedings brought against him, or to assist in his defense.”

       Washington retained a second psychologist, Dr. John Cronin, who met with
him for approximately one hour and reviewed Dr. Low’s and Dr. Cohen’s reports
prior to sending a report to counsel in May 2018. Dr. Cronin then met with
Washington a second time shortly before Washington’s June 2018 competency
hearing. Dr. Cronin did not address the federal statutory competency standard of 18
U.S.C. § 4241(a), but he did conclude more generally that Washington “lacks many
of the necessary features to be judged as ‘competent’ to stand trial.” Dr. Cronin
criticized Dr. Low’s report but did not tether his criticisms to the federal competency
standards.

      At the competency hearing, the examiners testified in person or remotely, and
Washington did not testify. After the hearing, the magistrate judge prepared a report
and recommendation finding Washington competent to stand trial. In the report, the

                                         -5-
magistrate judge found Dr. Low’s analysis most compelling, the reports of Drs.
Cohen and Cronin “simply lacking,” and Dr. Cronin’s critique of Dr. Low’s report as
suggesting a fundamental “lack of familiarity with the competency standard in federal
court.”

       Washington filed objections, which the district court rejected, and Washington
pleaded guilty, preserving his objections to the competency determination. At his
change-of-plea hearing, Washington testified and interacted with the court.
Outstanding questions remaining for sentencing included the drug quantity
attributable to Washington for determining a base offense level and the applicability
of a two-level enhancement for possession of the firearm in connection with the drug
offense. At sentencing, the district court found Washington responsible for between
840 grams and 2.8 kilograms of cocaine base and 7 grams of heroin. In addition, the
district court found the firearm enhancement applied. Washington’s advisory
Guidelines range was 168 to 210 months’ imprisonment. Washington sought a
downward departure based on an overstated criminal history, USSG § 4A1.3, his
physical impairments, id. § 5H1.4, and his mental impairments, id. § 5K2.13. He also
asked for a downward variance. The district court imposed a below-range sentence
of 160 months, stating, “I am going to give you a sentence that’s below, slightly
below, the guidelines. It is hard to figure out what you have done to earn that, but I
do think [it] is appropriate.” The district court expressly rejected the § 4A1.3
downward departure request based on criminal history but did not expressly reject the
health-related departure requests. Rather, in the written statement of reasons for the
sentence imposed, the district court characterized the below-range sentence as a
variance rather than a departure. Washington appeals.




                                         -6-
                                           II.

       We review a district court’s competency determination—a detailed and fact-
intensive individualized analysis—for clear error. See United States v. Cook, 356
F.3d 913, 918 (8th Cir. 2004) (“Th[e] competency determination is a factual finding
we affirm unless clearly arbitrary or unwarranted, or clearly erroneous.” (citation
omitted)). As the government concedes, however, we review de novo the underlying
legal question of whether the district court properly apportioned the burden of proof
and applied the correct standard. Here, Washington’s primary argument concerning
competency is a challenge to the district court’s allocation of the burden of proof.

       We have repeatedly stated that the burden to prove incompetency to stand trial
rests with the defendant. See, e.g., United States v. Mueller, 661 F.3d 338, 352 (8th
Cir. 2011). Washington nevertheless argues that an open question remains because
a circuit split exists, the Supreme Court itself has not resolved the issue, and our court
previously has noted inconsistencies as to this issue. See United States v.
Whittington, 586 F.3d 613, 617 (8th Cir. 2009) (“This court’s opinions on the issue
are inconsistent.”); id. at 617–18 (collecting and discussing cases). In this instance,
we need not dive more deeply into this question nor comment on the merit of
Washington’s argument. Here, even assuming we have been unclear as to the burden
of proof, this simply is not a case where the burden of proof matters. See Medina v.
California, 505 U.S. 437, 449 (1992) (“[T]he allocation of the burden of proof to the
defendant will affect competency determinations only in a narrow class of cases
where the evidence is in equipoise; that is, where the evidence that a defendant is
competent is just as strong as the evidence that he is incompetent.”); see also
Appellant’s Brief at 9 (“the burden will only be essential to those cases where the
evidence lies in perfect balance”).




                                           -7-
       Federal statutes set forth the competency standard as well as procedures
permitted or required for determining competency. See 18 U.S.C. § 4241(d)
(“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. § 4247(b)–(d) (examinations, reports, and hearings). Here, the district court’s
determination relied heavily on Dr. Low’s extensive and well-supported report. Dr.
Low’s opinions as to Washington’s malingering were well explained and
comprehensive. Her conclusions as to Washington’s abilities relied on a lengthy
period of observation, several substantive tests, and repeated clinical examinations.
Her findings were consistent with Washington’s repeated court appearances without
suggestions of incompetency and his interactions over the phone and electronically
while being observed. In addition, the district court permissibly discounted the much
more cursory reports and opinions from Drs. Cohen and Cronin. In particular, the
district court properly observed that the defense reports did not fully embrace the
applicable standard, and at many points, particularly when critiquing Dr. Low,
seemingly misconstrued the applicable standard and the questions at issue. The
district court’s competency determination enjoys more than ample support, was not
clearly erroneous, and was not sufficiently close to consider the burden of proof a
potential source of error.

       Similarly, as to sentencing, we find no error in the district court’s drug quantity
or firearm-related Guidelines determinations. See United States v. Ramirez-
Maldonado, 928 F.3d 702, 708 (8th Cir. 2019) (drug quantity calculations are “factual
determination[s] reviewed for clear error”); United States v. Smith, 656 F.3d 821,
825–26 (8th Cir. 2011) (reviewing for clear error the question of whether a defendant
possessed a firearm in connection with a drug offense). In the context of a
conspiracy, the drug quantity for sentencing purposes includes not only quantities
Washington was personally involved with, but “all quantities of contraband that were
involved in transactions carried out by other participants, if those transactions were
within the scope of, and in furtherance of, the jointly undertaken criminal activity and

                                           -8-
were reasonably foreseeable in connection with that criminal activity.” USSG
§ 1B1.3 cmt. n.3(D). Here, as described, the conspirators operated essentially as a
dispatch system with a centralized handler of a “dope phone” receiving calls for
deliveries and sending conspirators to carry out the deliveries. Washington was not
peripheral to this scheme. He served multiple roles as an armed participant, taking
calls, dispatching couriers, and delivering drugs himself. Further, Washington used
false documents to rent the home where he lived with the conspiracy’s ultimate leader
and where officers found Washington with a firearm and contraband. The scope of
the conspirators’ activities were reasonably foreseeable to Washington, and the
quantities found by the district court are well supported by the record.

       USSG § 2D1.1(b)(1) imposes a two-level increase to the offense level if a
defendant possessed a firearm. Commentary to that subsection provides: “The
enhancement should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” Id. cmt. n.11(A). Here,
the proximity of the firearm to Washington and contraband at the time it was
discovered support the district court’s finding. See United States v. Anderson, 618
F.3d 873, 881 (8th Cir. 2010) (“We have . . . recognized that a well-known tendency
of drug criminals to use firearms in connection with their drug activities supports an
inference that a gun at a location near the drug activity was somehow connected to
it.”). Although Washington argues someone else might have surreptitiously placed
the firearm in his wheelchair, his speculation in this regard discounts the fact that the
firearm was positioned to be retrieved by the chair’s occupant. The district court’s
firearm determination was not clearly erroneous.

       Finally, we find no abuse of discretion in the ultimate sentence imposed. See
United States v. Roberts, 747 F.3d 990, 992 (8th Cir. 2014). “We have declared it
‘nearly inconceivable’ to imagine a case where the district court imposed a
below-Guidelines sentence and ‘abused its discretion in not varying downward still
further.’” United States v. Madison, 863 F.3d 1001, 1007 (quoting United States v.

                                          -9-
Lazarski, 560 F.3d 731, 733 (8th Cir. 2009)). Here, the most fair reading of the
record shows that the court, when imposing sentence, placed considerable weight on
Washington’s role in the conspiracy and his physical and mental health limitations.
The district court was entitled to do so. Roberts, 747 F.3d at 992 (“[A] sentencing
court has wide latitude to weigh the section 3553(a) factors in each case and assign
some factors greater weight than others.” (quoting United States v. Lozoya, 623 F.3d
624, 627 (8th Cir. 2010))). In fact, the court did not express doubt or concern that the
downward variance failed to go lower. Rather, if anything, the court expressed doubt
as to the wisdom of varying downward at all. We find no abuse of discretion.

                                          III.

      We affirm the judgment of the district court.
                      ______________________________




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