     Case: 13-10629      Document: 00512621371         Page: 1    Date Filed: 05/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit


                                    No. 13-10629                               FILED
                                  Summary Calendar                          May 7, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DONALD JOSEPH WEST,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:12-CR-49-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       A jury found Donald Joseph West guilty of aggravated bank robbery,
using and carrying a firearm during and in relation to a crime of violence, and
being a felon in possession of a firearm, violations of 18 U.S.C. §§ 922, 924, and
2113. Although West was represented by the Federal Public Defender (FPD)
through the Government’s case in chief and during the presentation of two
defense witnesses, West insisted on proceeding pro se for the remainder of the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 13-10629     Document: 00512621371     Page: 2   Date Filed: 05/07/2014


                                  No. 13-10629

proceedings. Now represented by counsel, West argues that although he was
mentally competent to stand trial, he was not mentally competent to represent
himself at trial. Even under a de novo standard of review, West has not shown
that the district court erred in granting his request to proceed pro se.
Accordingly, we need not decide the appropriate level of review. See, e.g.,
United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
      A defendant has a constitutional right to represent himself at trial.
Faretta v. California, 422 U.S. 806, 814-20 (1975). To exercise the right to self-
representation, the defendant must knowingly and intelligently forgo counsel,
and his request to proceed without counsel must be clear and unequivocal.
United States v. Cano, 519 F.3d 512, 516 (5th Cir. 2008). A defendant “may
not waive his right to counsel or plead guilty unless he does so competently
and intelligently.”   Godinez v. Moran, 509 U.S. 389, 396 (1993) (internal
quotation marks and citations omitted).
      In Indiana v. Edwards, 554 U.S. 164, 178 (2008), the Supreme Court
held that “the Constitution permits States to insist upon representation by
counsel for those competent enough to stand trial . . . but who still suffer from
severe mental illness to the point whether they are not competent to conduct
trial proceedings by themselves.” However, the Court declined to adopt a
specific measure for determining a defendant’s ability to conduct a trial. Id. at
175-77.
      West’s reliance on Edwards is misplaced for several reasons. First, in
Edwards, the Supreme Court addressed the constitutionality of the denial of
the right to self-representation; the Court did not address the competency of a
defendant who is granted the right to self-representation, nor did it suggest
that a trial court which allows a defendant to represent himself is required to
first ascertain that he is capable of doing so. Cf. Panetti v. Stephens, 727 F.3d



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                                   No. 13-10629

398, 414 (5th Cir. 2013) (noting that “Edwards is permissive, allowing the state
to insist on counsel, but not requiring the state to do so”), petition for cert. filed
(Jan. 27, 2014) (No. 13-8453); see also Wright v. Bowersox, 720 F.3d 979, 986
(8th Cir. 2013) (concluding that Edwards did not announce a new
constitutional rule requiring a state court to impose a heightened standard of
competency when a defendant wishes to waive his right to counsel). Further,
even assuming that the decision in Edwards is relevant to the instant case,
West has not shown that his competency fell below a standard which would
have required the district court to deny his request to represent himself. See
Edwards, 554 U.S. at 178.
      West alternatively argues for the first time on appeal that the district
court erred by denying his request to call witnesses in order to present his
defensive theory of the case. We review his argument for plain error only. See
United States v. Perez-Solis, 709 F.3d 453, 462 (5th Cir. 2013). The exclusion
of evidence does not necessitate reversal unless it affected the defendant’s
substantial rights. United States v. Tuma, 738 F.3d 681, 687-88 (5th Cir.
2013), petition for cert. filed (Mar. 19, 2014) (No. 13-1152). In assessing any
error, this court “must consider the other evidence in the case and determine
whether the improperly excluded evidence, if admitted, would have had a
substantial impact on the jury’s verdict.” Id. at 688. West has not shown that
the denial of the witnesses amounted to plain error, or that it affected his
substantial rights.
      AFFIRMED.




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