     Case: 15-60694      Document: 00513628115         Page: 1    Date Filed: 08/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 15-60694                                FILED
                                  Summary Calendar                         August 8, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GAIL OWENS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:11-CR-69-3


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Gail Owens appeals her guilty plea conviction and 240-month sentence
for possession with the intent to distribute oxycodone, a Schedule II narcotic
drug controlled substance. See 21 U.S.C. § 841(a)(1). The Government moves
to dismiss or for summary affirmance. We dismiss the appeal as barred by the
appeal waiver in Owens’s plea agreement.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 15-60694

      The Government contends that Owens’s appeal should be dismissed
because her plea agreement contains an appeal waiver, and her plea was
knowing and voluntary. The Government further contends that Owens was
sufficiently competent to enter her plea. Owens argues that her appeal waiver
is not enforceable because her plea was not knowing and voluntary.
Specifically, Owens argues that she lacked the mental capacity to weigh and
understand the long term consequences of her decision to plead guilty because,
among other things, she is bipolar, she was on medication when she pleaded
guilty, and she attempted suicide approximately seven weeks prior to pleading
guilty, which caused her to be hospitalized for several days.
      The conviction of a mentally incompetent defendant violates the Due
Process Clause. See Pate v. Robinson, 383 U.S. 375, 378 (1966). A defendant
has a procedural due process right to a hearing to determine her competence if
the evidence before the district court raises a bona fide doubt about her
competency. See id. at 385. Under the constitutional standard, a district court
should conduct a competency hearing if “the trial judge receive[s] information
which, objectively considered, should reasonably have raised a doubt about
defendant’s competency and alerted him to the possibility that the defendant
could neither understand the proceedings or appreciate their significance, nor
rationally aid his attorney in his defense.” United States v. Williams, 819 F.2d
605, 607 (5th Cir. 1988) (citation omitted); see Medina v. California, 505 U.S.
437, 448 (1992) (holding that the key is whether the defendant had “the
capacity to participate in [her] defense and understand the proceedings against
[her]”).
      There is no specific “standard for the nature or quantum of evidence
necessary to trigger a competency procedure.” Williams, 819 F.2d at 608
(internal quotation marks and citation omitted). However, this court considers



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                                  No. 15-60694

three factors in determining whether a competency hearing is required: (i) any
history of irrational behavior; (ii) the defendant’s demeanor at trial; and (iii)
any prior medical opinion on competency. United States v. Davis, 61 F.3d 291,
304 (5th Cir. 1995) (discussing the constitutional “bona fide doubt” standard).
      Owens made no objection with respect to her competency during the
guilty-plea hearing and did not seek to withdraw her guilty plea in the district
court. Accordingly, the district court’s actions are reviewed for plain error. See
United States v. Vonn, 535 U.S. 55, 59 (2002). To prevail on plain-error review,
Owens must show that an error occurred, that the error was plain, which
means “clear” or obvious,” and that the error affected her substantial rights.
See United States v. Olano, 507 U.S. 725, 732-35 (1993). This court has the
discretion to correct a forfeited error, but will not exercise that discretion
unless the error “seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. at 736 (internal quotation marks and citation
omitted).
      At the outset of the plea proceedings, the district court addressed
Owens’s competence. During the colloquy, the district court established that
Owens had completed the “[e]leventh grade, and then a year and a half of
college.” Asked if she had “been treated recently for any mental illnesses or
addictions to alcohol or narcotic drugs of any kind,” Owens described her
hospitalization following a suicide attempt. When the court asked if she was
“currently   receiving    any   treatment,”   Owens    answered:    “I’m   taking
medication.” Owens was unable to recall the name of the medicine but said it
was prescribed to address her bipolar disorder. Owens assured the court the
medication did not “in any way affect [her] ability to understand” the
proceedings.




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                                 No. 15-60694

      Owens indicated that she understood that she was appearing in court to
enter a plea of guilty, and that she understood the seriousness of the
proceedings. Owens’s counsel expressed to the district court that she had met
with Owens and was satisfied with her ability to understand the proceedings
and counsel’s advice. The Government also raised no issue as to competency.
Immediately prior to giving her plea, Owens, once again, indicated that her
bipolar disorder and medication did not “in any way, shape or form interfere[]
with [her] ability to understand what’s going on.” At the conclusion of the
hearing, the district court found that, “having viewed the defendant in court
and considered her demeanor and responses, the defendant is fully competent
and capable of entering an informed plea.”
      Nothing in the plea colloquy demonstrates that Owens was unable to
understand the district court’s questions or the nature of the proceedings. The
transcript reveals that Owens was well-oriented and provided lucid answers to
the district court’s questions. There is nothing to suggest that Owens was
incoherent, agitated, or had any other difficulties. Moreover, neither Owens
nor her counsel made any effort to challenge her competency during her plea
hearing, or during her sentencing hearing, which occurred approximately four-
and-a-half-months later. Nor did Owens make any effort to withdraw her
guilty plea for any reason.
      Owens’s interactions with the district court, the statements made by her
counsel and the judge, and Owens’s general demeanor at her guilty-plea
hearing, when objectively considered, were not sufficient to raise a bona fide
doubt as to her competency. Nor were they sufficient to give the district court
reasonable cause to believe that Owens was unable to understand the
proceedings against her or assist in her defense. Moreover, the record is devoid
of any of the hallmarks that might suggest incompetency—history of irrational



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behavior, demeanor at trial, and prior medical opinion. See Davis, 61 F.3d at
304. The district court did not commit error, plain or otherwise, in finding
Owens to be competent or in failing to sua sponte hold a competency hearing.
     Based on the foregoing, we conclude that Owens’s appeal waiver was
made knowingly and voluntarily, and it applies to the circumstances at hand,
based on the plea agreement’s plain language. See United States v. Jacobs,
635 F.3d 778, 781 (5th Cir. 2011). Because the appeal waiver admitted of no
exceptions, it bars this appeal. Consequently, we GRANT the Government’s
motion to dismiss and DENY the alternative motion for summary affirmance.
     APPEAL DISMISSED.




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