                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0057n.06

                                              No. 08-5076

                               UNITED STATES COURT OF APPEALS                              FILED
                                    FOR THE SIXTH CIRCUIT                               Jan 28, 2010
                                                                                  LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                                   )
                                                            )
       Plaintiff-Appellee,                                  )        ON APPEAL FROM THE
                                                            )        UNITED STATES DISTRICT
                  v.                                        )        COURT FOR THE EASTERN
                                                            )        DISTRICT OF KENTUCKY
RANDALL D. WILLIS,                                          )
                                                            )
       Defendant-Appellant.                                 )
                                                            )



BEFORE: NORRIS, COOK, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Defendant Randall Willis was convicted by a jury on multiple counts of conspiracy to

distribute, possession with intent to distribute, and distribution of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and 846; possession of a firearm in furtherance of a drug trafficking offense and

possession of an unregistered short-barreled shotgun, in violation of 18 U.S.C. § 924(c)(1) and 26

U.S.C. § 5861(d); and being a felon in possession of a firearm, contrary to 21 U.S.C. §§ 922(g)(1)

and 924(e)(1). On appeal, Willis challenges the district court’s determination that he was competent

to stand trial.        Willis also argues that his within-Guidelines sentence is substantively and

procedurally unreasonable because the district court failed to grant a downward departure in light

of his diminished mental capacity. We disagree and affirm.

                                                   I.
No. 08-5076
United States v. Willis


       The facts of this case are not in dispute. On March 2, 2006, a federal grand jury in

Lexington, Kentucky, returned a thirteen-count indictment charging numerous drug-related and

weapons offenses against Willis and another individual. The indictment stemmed from an

investigation by the Kentucky State Police into Willis’s illegal trafficking of narcotics. From March

2005 through November 2005, the police, with the assistance of a confidential informant, conducted

four controlled purchases of cocaine from Willis and his cohort. A search warrant was executed on

December 1, 2005, at Willis’s residence, yielding drug paraphernalia, a loaded sawed-off shotgun,

assorted ammunition, marijuana, four plastic baggies containing cocaine residue, and twenty-one pit

bulls, five of which were dead.

       Willis entered a plea of not guilty to the charges. Shortly before his jury trial was scheduled

to begin, defense counsel raised concerns about Willis’s mental state and filed a motion for a

competency hearing. The district court granted the motion and ordered a psychological evaluation

of Willis. Willis was committed to the Federal Medical Center in Lexington, Kentucky, and,

following a two-month evaluation, the examining psychologist recommended that Willis was

incompetent to stand trial. In a September 2006 forensic report, the psychologist noted that Willis

exhibited odd behavior by, inter alia, pacing for hours in a circular pattern and talking to himself as

if he heard voices. Willis expressed paranoid delusions about local law enforcement officials and

irrational beliefs about the identity of an arresting officer and the reasons for his arrest. The

psychologist provisionally diagnosed Willis with a psychotic disorder that significantly impaired his

reasoning. However, the psychologist noted the possibility that Willis was “malingering or


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No. 08-5076
United States v. Willis


pretending mental illness in order to avoid prosecution.” The psychologist opined that further

treatment was warranted and that Willis’s symptoms should improve with the use of anti-psychotic

medication. There was “a substantial probability [Willis] will attain the capacity to permit a trial to

proceed in the foreseeable future” if treated and stabilized.

       At a subsequent competency hearing in October 2006, the district court determined, on the

basis of the forensic report, that Willis was not competent to stand trial and committed him to the

Bureau of Prisons for further evaluation. A team of mental health professionals monitored Willis

at the Federal Medical Center in Butner, North Carolina, from December 2006 until April 2007. The

evaluators opined at the end of this time period that Willis was competent to stand trial; his psychotic

symptoms were in remission, and he was now able to understand the nature and consequences of the

proceedings against him and assist in his defense. These findings were incorporated in a May 2007

forensic report, accompanied by a certificate of restoration of competency to stand trial filed in

accordance with 18 U.S.C. § 4241(e). In the report, the evaluators identified one point of concern

– Willis still “verbalized a possible delusional, persecutory belief that the charges could be dropped

because they were based on the false allegations of a person posing as an arresting officer.”

However, Willis also demonstrated the ability to function at a high level in a structured environment,

and he interacted appropriately with staff and peers. Most importantly, Willis exhibited a “rational

and realistic understanding of his charges and ability to consult with his attorney” and “was able to

discuss the options available to him as a defendant in a criminal case in a lucid and organized




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No. 08-5076
United States v. Willis


manner.” It was therefore the opinion of the evaluators that Willis was not suffering from any

mental disease rendering him incompetent to stand trial.

       In July 2007, upon receipt of the second report, the district court conducted another

competency hearing. The district court stated that it had reviewed the May 2007 forensic report and

found, consistent with the evaluation, that Willis was competent to stand trial. The prosecutor and

defense counsel both concurred in this ruling. Specifically, defense counsel informed the court that

he had consulted with Willis prior to the hearing and was of the opinion that Willis understood the

nature of the charges against him and could assist with his defense.

       The case proceeded to trial in October 2007. The jury found Willis guilty on seven counts

of drug and weapons offenses. At sentencing, the district court took into account Willis’s criminal

history category of VI, his classification as an armed career criminal and career offender, and the

recommended sentencing Guidelines range of 360 months to life imprisonment, before it imposed

a sentence of life imprisonment. Willis now timely appeals his convictions and sentence.

                                                 II.

       Willis first challenges the district court’s determination that he was competent to stand trial.

He contends that, in light of notations in the May 2007 forensic report that the delusional behavior

identified in the September 2006 forensic report persisted, the district court should have conducted

a more comprehensive evidentiary hearing and appointed an independent psychologist to review the

records and evaluate Willis. Willis further maintains that the sentencing record demonstrates his

lack of understanding of the nature and consequences of the criminal proceedings against him – i.e.,


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No. 08-5076
United States v. Willis


he believed that his lawyer and the prosecutor conspired against him and confused the present

offenses with events related to his 1986 manslaughter conviction for a fatal stabbing.1

       “A defendant’s competence is a question of fact, which we review for clear error.” Harries

v. Bell, 417 F.3d 631, 635 (6th Cir. 2005).

       By statute, a defendant or the Government “may file a motion for a hearing to
       determine the mental competency of the defendant,” and such a motion must be
       granted “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.”

United States v. Denkins, 367 F.3d 537, 545 (6th Cir. 2004) (quoting 18 U.S.C. § 4241(a)). Even

in the absence of a motion, “the district court has not only the prerogative, but the duty, to inquire

into a defendant’s competency whenever there is reasonable cause to believe that the defendant is

incompetent to stand trial.” Id. (citation and internal quotation marks omitted). Pertinent to the

present appeal, subsection (e) of § 4241 provides:

       (e) Discharge. – When the director of the facility in which a defendant is hospitalized
       pursuant to subsection (d) determines that the defendant has recovered to such an
       extent that he is able to understand the nature and consequences of the proceedings
       against him and to assist properly in his defense, he shall promptly file a certificate
       to that effect with the clerk of the court that ordered the commitment. The clerk shall
       send a copy of the certificate to the defendant’s counsel and to the attorney for the
       Government. The court shall hold a hearing, conducted pursuant to the provisions
       of section 4247(d), to determine the competency of the defendant. If, after the
       hearing, the court finds by a preponderance of the evidence that the defendant has
       recovered to such an extent that he is able to understand the nature and


       1
          Willis had several prior adult criminal convictions, including a 1986 Kentucky conviction
for first-degree manslaughter stemming from a bar fight, during which he fatally stabbed the victim
six times.

                                                -5-
No. 08-5076
United States v. Willis


        consequences of the proceedings against him and to assist properly in his defense,
        the court shall order his immediate discharge from the facility in which he is
        hospitalized and shall set the date for trial or other proceedings.

18 U.S.C. § 4241(e) (emphasis added).

        “[T]he bar for incompetency is high: a criminal defendant must lack either a ‘sufficient

present ability to consult with his lawyer with a reasonable degree of rational understanding’ or ‘a

rational as well as factual understanding of the proceedings against him.’” United States v. Miller,

531 F.3d 340, 350 (6th Cir. 2008) (quoting Drope v. Missouri, 420 U.S. 162, 172 (1975) (internal

quotation marks omitted)). In making this determination, the district court must consider several

factors, including the defendant’s demeanor, any prior medical opinion regarding competency, and

evidence of irrational behavior. Miller, 531 F.3d at 348; Williams v. Bordenkircher, 696 F.2d 464,

466 (6th Cir. 1983). An attorney’s opinion about his client’s competency is likewise a relevant

factor. United States v. Tucker, 204 F. App’x 518, 520 (6th Cir. 2006) (citing Owens v. Sowders,

661 F.2d 584, 586 (6th Cir. 1981)); United States v. Jackson, 179 F. App’x 921, 933 (6th Cir. 2006).

Moreover, although a defendant may show signs of paranoia or other mental illness, “such an illness

would not necessarily render [the] defendant incompetent to stand trial.” Miller, 531 F.3d at 349

(citing United States v. Davis, 93 F.3d 1286, 1290 (6th Cir. 1996)). In short, “[t]here are . . . no fixed

or immutable signs which invariably indicate the need for further inquiry to determine fitness to

proceed; the question is often a difficult one in which a wide range of manifestations and subtle

nuances are implicated.” Williams, 696 F.2d at 466 (quoting Drope, 420 U.S. at 180).




                                                  -6-
No. 08-5076
United States v. Willis


        We find no clear error in the district court’s determination, consistent with the diagnosis in

the May 2007 forensic evaluation, that Willis was no longer suffering from a mental disease or defect

that prevented him from understanding the nature and consequences of the proceedings against him

or from assisting in his defense. The September 2006 and May 2007 forensic reports were not

contradictory. The first report suggested that Willis’s mental health could improve under controlled

conditions; the second report indicated that Willis in fact regained his competency after undergoing

treatment and close supervision at the federal medical center. At the competency hearing, defense

counsel – the same attorney who initially questioned Willis’s competency – did not challenge the

May 2007 forensic evaluation and agreed with the district court that Willis was now competent to

stand trial. In fact, there is no indication in the record that Willis’s behavior during the trial raised

competency concerns. Under these circumstances, the district court did not clearly err in finding

Willis competent to stand trial. See United States v. Baker, No. 6:07-58-KKC, 2008 WL 138075,

at *2 (E.D. Ky. Jan. 11, 2008) (finding that the defendant was competent to stand trial where there

was no irrational or erratic conduct that would indicate a current competency deficit, the forensic

report concluded that the defendant was competent, and defense counsel stipulated to the

admissibility and substance of the report).

        Moreover, contrary to Willis’s claim, his behavior at sentencing did not signal a need to

further evaluate his competency. Willis argues that in light of purportedly irrational comments he

made during his allocution, the district court should have doubted his competency and required




                                                  -7-
No. 08-5076
United States v. Willis


additional evaluation. In United States v. Harlan, 480 F.2d 515 (6th Cir. 1973), we considered and

rejected a similar argument.

       In Harlan, the prosecutor filed a pre-trial motion for a mental examination of the defendant,

alleging that the defendant had a history of mental illness and institutionalization. 480 F.2d at 516.

The district court granted the motion, and Harlan was examined by psychiatrists at a federal facility.

Id. The first of two resultant forensic reports deferred psychiatric diagnosis; the second report

concluded that Harlan was competent to stand trial. Id. At the subsequent competency hearing,

counsel for both parties, and Harlan himself, concurred in the findings in the forensic reports. Id.

The district court therefore declared Harlan competent to stand trial, and Harlan subsequently entered

a guilty plea to a charge of armed bank robbery. Id. At the sentencing hearing, the court engaged

in a dialogue with Harlan and acknowledged that he had “some mental problem,” but proceeded with

sentencing because neither of the psychiatric reports indicated that Harlan suffered from a psychosis.

Id.

       On appeal, Harlan asserted that the district court erred in failing to inquire further into his

competency at the guilty plea and sentencing stages. We disagreed:

       It is true that in its opinion in United States v. Davis, [365 F.2d 251 (6th Cir. 1966)],
       this Court stated that under the facts of that case the District Court had an obligation
       to hold another hearing, 365 F.2d at 255. That opinion, however, also recognized the
       rule of Beltran v. United States, 302 F.2d 48, 50 (1st Cir. 1962), that a trial judge has
       no affirmative duty to conduct, sua sponte, a second inquiry into an accused’s
       competency “unless the court is on notice that something is amiss.” See Id.

                                                ***



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No. 08-5076
United States v. Willis


        Significantly, most of the . . . factors [cited by the defendant] merely relate to
        Appellant’s past and apparently persisting personality disorders, of which the District
        Court was made fully aware at the competency hearing through the psychiatric
        reports. Although these reports certainly did not give Appellant a clean bill of mental
        health, the one nonetheless recommended a finding of competency and the other
        deferred psychiatric diagnosis, and no contradictory evidence was presented to the
        Court at the competency hearing. With this competent and uncontradicted evidence
        supporting the District Court’s finding of competency, we find no basis for upsetting
        that determination. See Wolcott v. United States, 407 F.2d 1149 (10th Cir.), cert.
        denied, 396 U.S. 879 (1969).

        Beyond the factors of which the District Court was thus fully aware at the
        competency hearing, it appears that only two episodes – the rejection by Appellant
        of an opportunity to plead guilty to the lesser offense of unarmed robbery and his
        statement at the sentencing hearing that he had experienced two “seizures” since he
        underwent psychiatric examination – might be said to have given the Court notice of
        a possible change in Appellant’s condition subsequent to the competency hearing.
        We are unable to say that these episodes gave rise to an affirmative duty on the part
        of the Court to conduct, sua sponte, an additional inquiry into Appellant’s
        competency and that the Court’s failure to do so constituted prejudicial error,
        requiring that Appellant’s guilty plea be set aside.

Harlan, 480 F.2d at 516-17; see also Beltran, 302 F.2d at 50 (“There can be no affirmative duty to

investigate unless the court is on notice that something is amiss. Where the most recent word was

a well-qualified medical report of present competency, an earlier contrary report does not seem to

us to put the court on notice with respect to the present even though the court had endorsed an earlier

report by formally finding it to be correct.”).2


        2
         Cf. Denkins, 367 F.3d at 547-48 (holding that the defendant’s statements at his plea hearing
that he suffered a head injury and associated mental problems were not so indicative of
incompetency that the district court’s acceptance of his plea violated due process, where there was
no exhibition of irrational behavior or other evidence of incompetency, a professional evaluation
confirmed the court’s competency assessment, and the defendant and his counsel assured the court
that the defendant understood the nature of the charges and consequences of the plea); Miller, 531
F.3d at 350 (holding that the district court did not err in failing to order sua sponte a competency

                                                   -9-
No. 08-5076
United States v. Willis


       Under the present analogous circumstances, Willis’s behavior at sentencing did not suggest

that something was amiss so as to trigger an affirmative duty on the part of the district court to

reevaluate his competency. Although Willis, when given the opportunity to allocute, made a

rambling reference to the events surrounding his 1986 manslaughter conviction, his comments were

insufficient to give the court cause to question his competency. Our review of the sentencing

transcript shows that Willis was well-acquainted with the legal system and displayed a clear

understanding of the current legal proceedings when he requested an appeal because he was

dissatisfied with his attorney and protested the court’s consideration of his violent propensities –

specifically, his prior manslaughter conviction:

       [WILLIS]: All right. You’re saying I had violence in this case, where is the violence
       at? I ain’t been convicted of no violence.

                                                   ***

       [WILLIS]: I ain’t trying to cause nothing over this, all I’m saying it’s like this here:
       You’re talking about something that I’m supposed to have done 20 years ago. Just
       because I’m charged with it now, I wasn’t found guilty of it. You’re taking and
       accusing me of something or you’re judging me on something that I ain’t been found
       guilty of. Now, if I was guilty of it or said I was guilty of it, now, 1992, yes, I pled
       guilty to a little stabbing charge there, and yes –

       [THE COURT]: I’m sorry, did you say a little stabbing charge?



hearing where defense counsel did not raise questions at or before trial regarding the defendant’s
mental health and the defendant, who exhibited symptoms of paranoia, demonstrated that he
understood the proceedings by stating, in response to the court’s question as to how he could afford
to retain counsel, “I am borrowing the money from five different people. This is my life that is on
the line here . . . . If I lose, I am going to jail for a long time.”).


                                                - 10 -
No. 08-5076
United States v. Willis


       [WILLIS]: Yes, because it was barely right there, a little nick is the reason I said little
       stabbing charge.

       [THE COURT]: Is this the one in the bar in Richmond that the man died?

       [WILLIS]: That would be called a big stabbing charge.

       [THE COURT]:Yeah, that would be a big one, wouldn’t it, six times stabbing
       someone. It sure would.

       [WILLIS]: Right.

       Defense counsel did not raise any concerns regarding Willis’s competency during the

sentencing hearing.3 In sum, with the benefit of two court-ordered psychiatric evaluations and

competency hearings, the district court was well aware of Willis’s mental health issues and was

presented with no independent evidence to contradict the evaluators’ findings that those problems

were in remission and that Willis’s competency was restored. We therefore conclude, under these

circumstances, that the district court more than adequately protected Willis’s due process rights and

did not clearly err in its competency determination.

                                                  III.

       Willis next claims that his sentence is substantively and procedurally unreasonable because

the district court failed to grant a downward departure, pursuant to U.S.S.G. § 5K2.13,4 from the


       3
        Cf. Tucker, 204 F. App’x at 521 (holding that district court did not err in failing to hold
competency hearing and noting that none of the defendant’s successive lawyers expressed doubt
about his competence before he pled guilty or at sentencing).
       4
           Under U.S.S.G. § 5K2.13,

       [a] downward departure may be warranted if (1) the defendant committed the offense

                                                 - 11 -
No. 08-5076
United States v. Willis


applicable Guidelines range in light of his mental disorder and borderline IQ. Willis admits,

however, that he never moved for a downward departure, based upon diminished capacity, of his

within-Guidelines sentence.

       “[W]e do not review a district court’s decision not to depart downward unless the record

shows that the district court was unaware of, or did not understand, its discretion to make such a

departure.” United States v. Santillana, 540 F.3d 428, 431 (6th Cir. 2008). “[W]e presume that the

district court understood its discretion, absent clear evidence to the contrary.” Id. Absent such clear

evidence, we review the district court’s decision “only if (1) the sentence was imposed in violation

of the law; (2) it was imposed as a result of an incorrect application of the guidelines; (3) the

sentence represented an upward departure; or (4) the sentence was imposed for an offense for which

there is no Sentencing Guideline and is plainly unreasonable.” Id. (citations and internal quotation



       while suffering from a significantly reduced mental capacity; and (2) the significantly
       reduced mental capacity contributed substantially to the commission of the offense.
       Similarly, if a departure is warranted under this policy statement, the extent of the
       departure should reflect the extent to which the reduced mental capacity contributed
       to the commission of the offense.

       However, the court may not depart below the applicable guideline range if (1) the
       significantly reduced mental capacity was caused by the voluntary use of drugs or
       other intoxicants; (2) the facts and circumstances of the defendant’s offense indicate
       a need to protect the public because the offense involved actual violence or a serious
       threat of violence; (3) the defendant’s criminal history indicates a need to incarcerate
       the defendant to protect the public; or (4) the defendant has been convicted of an
       offense under chapter 71, 109A, 110, or 117, of title 18, United States Code.

See also United States v. Cole, 359 F.3d 420, 430 (6th Cir. 2004).


                                                - 12 -
No. 08-5076
United States v. Willis


marks omitted). If review is warranted, the plain error standard applies where the defendant failed

to object to his sentence before the district court. Id. Further, even if review is unwarranted, “we

are still free to review a defendant’s claim that his sentence is excessive based on the district court’s

unreasonable analysis of the section 3553(a) factors in their totality.” Id. (citation and internal

quotation marks omitted).

        The district court’s decision not to depart is not reviewable. There is no clear evidence that

the district court did not understand its discretion to make a downward departure. To the contrary,

in imposing the maximum sentence within the Guidelines range, the court noted Willis’s violent

propensities and danger to the public – rendering him ineligible for the diminished capacity departure

under § 5K2.13.

        Willis has not otherwise shown that the district court plainly erred in imposing the sentence

of life imprisonment or that this sentence was unreasonable. See generally United States v. Baker,

559 F.3d 443, 448 (6th Cir. 2009); United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008)

(en banc).

                                                  IV.

        For the foregoing reasons, we affirm Willis’s convictions and sentence.




                                                 - 13 -
