           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2   United States v. Denkins         No. 01-5881
        ELECTRONIC CITATION: 2004 FED App. 0129P (6th Cir.)
                    File Name: 04a0129p.06                                                  _________________
                                                                                                COUNSEL
UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________

 UNITED STATES OF AMERICA , X
             Plaintiff-Appellee, -
                                   -
                                   -   No. 01-5881
            v.                     -
                                    >
                                   ,
 ABRAHAM DENKINS, II,              -
          Defendant-Appellant. -
                                  N
       Appeal from the United States District Court
    for the Eastern District of Kentucky at Covington.
  No. 00-00026—Jennifer B. Coffman, District Judge.

                   Submitted: August 5, 2003

               Decided and Filed: May 6, 2004

   Before: BOGGS, Chief Judge; RYAN, Circuit Judge;
              ROSEN, District Judge.*




    *
     The Honorable Gerald E. Rosen, United States District Judge for the
Eastern District of Michigan, sitting by designation.

                                   1
No. 01-5881                     United States v. Denkins       3    4     United States v. Denkins                   No. 01-5881

ON BRIEF: Melvin Houston, Detroit, Michigan, for                       Defendant now appeals from his conviction and sentence
Appellant. Charles P. Wisdom, Jr., ASSISTANT UNITED                 on three grounds. First, he challenges the district court’s
STATES ATTORNEY, Lexington, Kentucky, for Appellee.                 denial of his motion to withdraw his plea, claiming
                                                                    substantive and procedural errors in the lower court’s
                    _________________                               resolution of this motion. Next, Defendant asserts that his
                                                                    nolo contendere plea should not have been accepted, where
                        OPINION                                     the district court purportedly failed to adequately ascertain
                    _________________                               whether he understood the nature of the charges against him
                                                                    and the consequences of his plea. Finally, in a separate brief
  ROSEN, District Judge.                                            filed on his own behalf, Defendant challenges the district
                                                                    court’s enhancement of his sentence based on his prior drug
                    I. INTRODUCTION                                 convictions, contending that the court failed to establish
   Defendant/Appellant Abraham Denkins was charged in a             whether the prior convictions relied upon were
three-count indictment for his alleged role in a drug               constitutionally sound and valid. For the reasons set forth
conspiracy. Specifically, the Government alleged that on            below, we affirm Defendant’s conviction and sentence.
May 5, 2000, Defendant delivered approximately 12 grams of              II. FACTUAL AND PROCEDURAL BACKGROUND
cocaine base to a witness cooperating with the Government,
and that Defendant accepted $100 from a co-defendant for            A. Defendant’s alleged role in the charged offenses
completing this transaction. The indictment charged
Defendant with conspiracy to distribute and to possess with           The presentence report in this case discloses the following
intent to distribute crack cocaine, distribution of cocaine base,   facts.    On May 5, 2000 at around 5:00 p.m.,
and travel in interstate commerce to facilitate narcotics           defendant/appellant Abraham Denkins arrived at a Holiday
trafficking.                                                        Inn parking lot in Covington, Kentucky with approximately
                                                                    12 grams of crack cocaine. He delivered the narcotics to a
  Defendant entered a plea of nolo contendere to each of            witness cooperating with the Government, and was given
these three charges. Shortly before he was to be sentenced,         $540 in cash. Immediately following this exchange,
however, Defendant filed motions, through new counsel,              Defendant was arrested.
seeking to withdraw his plea and be referred for a competency
evaluation. The district court granted the motion for a                Defendant reportedly advised the arresting officers that he
competency evaluation but denied the motion to withdraw the         had delivered the drugs at the request of a co-defendant,
plea pending the completion of the competency evaluation.           Miller Beckham, who had approached him in Cincinnati,
The evaluation concluded that Defendant was competent to            Ohio and offered him $100 to complete the transaction.
plead guilty and participate in sentencing, and Defendant           Defendant further stated that Beckham and a third defendant,
subsequently withdrew his blanket objection to the                  Jackie Sanders, drove him from Cincinnati to Covington, and
presentence report based on lack of competency. The court           that, along the way, Beckham gave him the narcotics wrapped
then sentenced Defendant to 120 months’ imprisonment, the           in a tissue. Finally, Defendant reported that, upon arriving at
statutory minimum in light of his prior drug convictions.           the Holiday Inn parking lot, he entered a vehicle occupied by
                                                                    the Government’s cooperating witness and delivered the
No. 01-5881                        United States v. Denkins           5    6       United States v. Denkins                           No. 01-5881

package of drugs to this individual. In his statement to the               basis for a plea of guilty to the Count One conspiracy
arresting officers, Defendant indicated that he knew he was                offense.2
delivering drugs, but only became aware of the type of drug
when the cooperating witness opened the package in his                        Following reassignment of the case to District Judge
presence.1                                                                 Jennifer B. Coffman, Defendant again attempted to withdraw
                                                                           his initial plea, and instead sought to plead nolo contendere to
B. Procedural History                                                      all of the charges. At a plea hearing on September 21, 2000,
                                                                           Judge Coffman asked Defendant a number of questions
   On May 10, 2000, the grand jury returned a three-count                  bearing upon his competency. (See 9/21/2000 Hearing Tr. at
indictment against defendants Abraham Denkins, Miller                      3-18, J.A. at 76-91.) During the colloquy, Defendant advised
Beckham, and Jackie Sanders. Count One charged the three                   the court that he had sustained a work-related injury several
Defendants with conspiracy to distribute and to possess with               years earlier, and since that time had suffered from memory
intent to distribute approximately twelve grams of crack                   problems, ringing in his ears, and hallucinations. Defendant
cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1).                   also advised the court that he took regular medication for high
Count Two charged that the defendants had traveled in                      blood pressure and for “ringing and voices” in his head. (Id.
interstate commerce to facilitate narcotics trafficking, thereby           at 4-6, J.A. at 77-79.)
violating 18 U.S.C. § 1952(a)(3). Count Three charged that
Defendant Denkins, aided and abetted by his two co-                           Following these initial inquiries, Judge Coffman asked
defendants, had distributed approximately twelve grams of                  Defendant whether he understood and could make reasonable
cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18                 decisions about the case, notwithstanding his medical
U.S.C. § 2. Defendant initially entered a plea of not guilty to            conditions and medications. The district judge also asked if
all of these charges.                                                      Defendant was satisfied with his attorney’s representation.
                                                                           Defendant responded affirmatively to both inquiries, and his
  On June 22, 2000, Defendant moved to be re-arraigned.                    attorney, Ruey Newsom, likewise expressed his view that
U.S. District Judge William O. Bertelsman granted                          Defendant was competent.
Defendant’s motion, and on July 13, 2000, Defendant was re-
arraigned before Magistrate Judge J. Gregory Wehrman.                        The district court next advised Defendant of the
Although Defendant attempted to plead guilty to all of the                 consequences of pleading nolo contendere. Judge Coffman
charges against him, the Magistrate Judge declined to accept               informed Defendant that he could continue to plead not guilty
this plea, finding that Defendant had not provided a factual               and the matter would go to trial. The district court also
                                                                           reminded Defendant that there was no plea agreement with
                                                                           the Government, and that such an agreement normally would
                                                                           address the sentence to be imposed. Defendant indicated that
                                                                           he still wished to proceed, despite the absence of a plea

    1                                                                          2
      In one of his pro se submissions to this court, however, Defendant         According to the presentence report, Defendant’s plea was refused
denies that he delivered any drugs to the Government’s cooperating         because he denied knowing at the time that there were drugs in the
witness. Instead, he apparently suggests that he was framed by the         package he had delivered to the hotel parking lot on the date spe cified in
arresting officers.                                                        the indictment.
No. 01-5881                   United States v. Denkins      7    8    United States v. Denkins                    No. 01-5881

agreement. Judge Coffman then read through each of the           evaluation but denied the motion to withdraw his plea,
charges against Defendant, and Defendant affirmed that he        pending the findings of the competency evaluation. In
understood each count of the indictment.                         granting the former motion, the court emphasized that the
                                                                 assessment “should address the question of (1) was defendant
   Finally, Judge Coffman advised Defendant of the               competent when he entered his plea and (2) is he competent
sentencing consequences of his plea. The court indicated that    to proceed with sentencing.” (1/18/2001 Order, J.A. at 46.)
Count One and Count Three carried mandatory minimum
sentences of ten years in prison and maximum sentences of          As indicated in an addendum to the presentence report, the
life imprisonment, and that Count Two carried a maximum          Bureau of Prisons referred Defendant for a competency
prison term of five years. Judge Coffman also explained that     evaluation, and the resulting report concluded that Defendant
Defendant faced a maximum eight-year period of supervised        was “competent when he entered his guilty plea and that he is
release following his imprisonment.                              currently competent to participate in his sentencing.” (J.A. at
                                                                 117.) Following the completion of this evaluation, the district
  Having addressed all of these matters, the district court      court scheduled Defendant’s sentencing for June 21, 2001.
revisited certain key points for Defendant’s further
consideration. First, Judge Coffman reminded Defendant that         At the sentencing hearing, the district court observed that
he would not be permitted to withdraw his plea in the event      defense counsel had objected to the entire presentence report
that he disagreed with his sentence. Next, the court asked       “on the grounds that you believed that a competency
Defendant to confirm his understanding of everything that        evaluation should occur.” (6/21/2001 Hearing Tr. at 5, J.A.
had transpired at the plea hearing, and emphasized that if       at 60.) In light of the completed evaluation, the court asked
Defendant was unsure of this, he could halt the proceeding       whether Defendant wished to withdraw this objection, and
and confer with his attorney. Finally, the court addressed the   counsel responded that this objection was being withdrawn.
particular nature of a plea of nolo contendere. Defendant then   (See id. at 5, J.A. at 60.) After addressing Defendant’s
entered a plea of no contest to each of the charges, and the     remaining objections, the district court sentenced Defendant
court accepted this plea.                                        to the statutory minimum prison term of 120 months on the
                                                                 first and third counts, and 60 months on the second count,
  Mr. Newsom subsequently withdrew from the case, and            with these sentences to be served concurrently. Defendant
new counsel was appointed for Defendant at a pre-sentencing      now appeals.
conference on November 16, 2000. On that occasion,
Defendant was asked if he wished to withdraw his nolo plea,                            III. ANALYSIS
and he responded that he did not. On December 18, 2000,
however, Defendant filed two motions through his new                As observed earlier, three issues are presented on appeal:
counsel, seeking to withdraw his plea and requesting a           (i) whether the district court properly denied Defendant’s
competency evaluation. In support of these motions, defense      motion to withdraw his plea; (ii) whether the district court
counsel stated that his client’s answers to his inquiries were   properly accepted Defendant’s nolo contendere plea; and (iii)
“either non-responsive or totally incoherent,” and that          whether Defendant’s prior drug convictions were properly
Defendant seemed not to apprehend the nature of the case or      considered in computing his sentence. We address each of
the consequences of his plea. (J.A. at 44-45.) The district      these matters in turn.
court granted Defendant’s request for a competency
No. 01-5881                    United States v. Denkins        9   10   United States v. Denkins                    No. 01-5881

A. Defendant Waived Any Objection to the District                    waiver, does not extinguish an “error” under Rule 52(b).
   Court’s Denial of His Motion to Withdraw His Plea.                Although in theory it could be argued that if the question
                                                                     was not presented to the trial court no error was
   As his first issue on appeal, Defendant challenges the            committed by the trial court, hence there is nothing to
district court’s denial of his motion to withdraw his nolo           review, this is not the theory that Rule 52(b) adopts. If a
contendere plea, claiming substantive and procedural errors          legal rule was violated during the District Court
in the lower court’s review of this motion. More specifically,       proceedings, and if the defendant did not waive the rule,
Defendant argues that his plea should have been withdrawn,           then there has been an “error” within the meaning of
and perhaps not even accepted in the first instance, in light of     Rule 52(b) despite the absence of a timely objection.
his purported lack of competency at the time this plea was
entered. Defendant further asserts that the district court         Olano, 507 U.S. at 732-34, 113 S. Ct. at 1777 (internal
deviated from the standard adopted in this circuit for             quotations and citations omitted).
resolving a motion to withdraw a plea. We decline to address
the merits of these contentions because Defendant waived any          We readily conclude that Defendant did not merely forfeit
right of appeal by expressly abandoning this issue in the court    his present challenge regarding the motion to withdraw his
below.                                                             plea, but that he has wholly waived any opportunity to contest
                                                                   the district court’s disposition of this motion. Defendant’s
  In United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770         motion to withdraw his plea and his motion for a competency
(1993), the Supreme Court addressed the extent of the              evaluation were presented in a single submission to the court
appellate courts’ authority to review claims of “plain error”      below, with the former motion resting solely on the ground
under Fed. R. Crim. P. 52(b). In resolving this issue, the         that Defendant lacked the mental competency to understand
Court carefully distinguished between “waiver” and                 the nature of the proceedings or to knowingly, voluntarily,
“forfeiture,” explaining:                                          and intelligently enter a plea. (See Defendant’s Motion to
                                                                   Withdraw Plea and Motion for Competency Evaluation, J.A.
     The first limitation on appellate authority under Rule        at 44-45.) Thus, it cannot be said that Defendant forfeited his
  52(b) is that there indeed be an “error.” Deviation from         claim of incompetency by failing to assert it in the court
  a legal rule is “error” unless the rule has been waived.         below. To the contrary, he squarely presented this issue,
  For example, a defendant who knowingly and voluntarily           persuading the district court to grant his request for a
  pleads guilty in conformity with the requirements of Rule        competency evaluation.
  11 cannot have his conviction vacated by the Court of
  Appeals on the grounds that he ought to have had a trial.          Having expressly raised this issue, however, Defendant and
  Because the right to trial is waivable, and because the          his counsel then proceeded to abandon it. While awaiting a
  defendant who enters a valid guilty plea waives that             ruling on Defendant’s motion to withdraw his plea and his
  right, his conviction without a trial is not “error.”            request for a competency evaluation, defense counsel filed an
                                                                   objection to the presentence report in its entirety, on the
     Waiver is different from forfeiture. Whereas forfeiture       ground that his client was not “competent in any fashion to
  is the failure to make the timely assertion of a right,          understand the proceedings going on around him.”
  waiver is the intentional relinquishment or abandonment          (12/20/2000 Objections to Presentence Report, J.A. at 115.)
  of a known right . . . . Mere forfeiture, as opposed to          Following the completion of a competency evaluation, in
No. 01-5881                    United States v. Denkins      11    12       United States v. Denkins                           No. 01-5881

which it was concluded that Defendant was competent at the           The circumstances presented here are legally
time of his plea, the district court scheduled Defendant’s         indistinguishable from those addressed in Sheppard. The sole
sentencing for June 21, 2001.                                      basis for Defendant’s motion to withdraw his plea was that he
                                                                   lacked the competency to enter this plea. When a subsequent
  At the sentencing hearing, the court and defense counsel         evaluation failed to support this contention, Defendant and his
David Fessler expressly revisited the issue of Defendant’s         counsel abandoned their competency-based objection to the
competency, with counsel unequivocally stating that he no          presentence report. In light of this withdrawn objection, the
longer wished to pursue it:                                        district court was never called upon to decide whether to
                                                                   permit Defendant to withdraw his plea on the ground of
     THE COURT: Now, let me see. Mr. Fessler, you had              incompetency.
  at one point objected to the entire [presentence] report,
  but I think that was on the grounds that you believed that         We recognize that Defendant did not explicitly abandon his
  a competency evaluation should occur. That having                underlying motion to withdraw his plea, and that the district
  occurred, do you withdraw your objection?                        court denied this motion, at least as a formal matter. Yet, in
                                                                   the very same order denying this motion, the district court
    MR. FESSLER: I withdraw objections to the entire               granted Defendant’s companion motion for a competency
  presentence report, Judge.                                       evaluation. (See 1/18/2001 Order, J.A. at 46.) Having
                                                                   afforded Defendant the opportunity to explore the underlying
(6/21/2001 Hearing Tr. at 5, J.A. at 60.) Defense counsel          basis for his request to withdraw his plea, the district court
then raised a few other objections, but none concerning            surely would have been willing to revisit the issue of
Defendant’s competency.                                            Defendant’s competency, and hence the validity of his plea,
                                                                   if the competency evaluation had provided support for
  Under analogous circumstances, we have held that this sort       Defendant’s position and Defendant had elected to pursue the
of abandonment of an issue raised by way of motion waives          matter at the sentencing hearing. Defendant did not so elect,
any right of appeal on that issue. In United States v.             however, presumably because the evaluation provided no
Sheppard, 149 F.3d 458, 461 (6th Cir. 1998), for example, the      such support. This constituted an abandonment of the
defendant had filed a motion to suppress evidence in the           competency issue, plain and simple. “Consequently, that
district court, but then withdrew the motion when the              challenge is forever foreclosed, and cannot be resurrected on
Government disproved its factual predicate. On appeal, the         this appeal.” United States v. Saucedo, 226 F.3d 782, 787
defendant again sought to argue, albeit under a slightly           (6th Cir. 2000), cert. denied, 531 U.S. 1102 (2001).3
different theory, that the district court should have suppressed
the evidence that had been the subject of his motion in the
court below. We held that the defendant “did not forfeit his            3
suppression argument,” but rather had “waived the argument                In any event, even if we were to reach the merits of this issue, we
by withdrawing his motion to suppress prior to trial.”             would find no basis to disturb the district court’s ruling denying
                                                                   Defendant’s motion to withdraw his plea. We review such a decision for
Sheppard, 149 F.3d at 461 (footnote omitted). Consequently,        an abuse of discretion. See United States v. Plu ta, 144 F.3d 968 , 973 (6th
we concluded that we were “without jurisdiction to consider        Cir.), cert. denied, 525 U.S. 916 (1998). As explained, the sole ground
this argument.” 149 F.3d at 461 (footnote omitted).                for Defendant’s motion — and his sole substantive argum ent on appeal
                                                                   — was that he lacked co mpe tency at the time he entered his plea. Yet, the
                                                                   district court thoroughly explored this subject at the plea hearing,
No. 01-5881                           United States v. Denkins            13     14    United States v. Denkins                      No. 01-5881

B. Any Defect in the District Court’s Plea Colloquy Did                             The substantive basis for this challenge, once again, is that
   Not Rise to the Level of Plain Error, But Instead Was                         Defendant’s mental and emotional problems should have
   Harmless.                                                                     prevented the district court from accepting his plea, and
                                                                                 instead should have led the court to order a competency
   Apart from contending that the district court erred in not                    evaluation. By statute, a defendant or the Government “may
allowing him to withdraw his plea, Defendant argues that his                     file a motion for a hearing to determine the mental
plea should have been rejected in the first instance. In                         competency of the defendant,” and such a motion must be
particular, Defendant asserts that the district court’s plea                     granted “if there is reasonable cause to believe that the
colloquy did not adequately ensure that Defendant understood                     defendant may presently be suffering from a mental disease
the nature of the charges against him and the consequences of                    or defect rendering him mentally incompetent to the extent
his plea. Because Defendant failed to object to this plea                        that he is unable to understand the nature and consequences
colloquy, we review this matter only for plain error. See                        of the proceedings against him or to assist properly in his
United States v. Vonn, 535 U.S. 55, 59, 122 S. Ct. 1043, 1046                    defense.” 18 U.S.C. § 4241(a). Even in the absence of such
(2002).                                                                          a motion, a court is required to order such a hearing if the
                                                                                 statutory standard of “reasonable cause” is satisfied. 18
                                                                                 U.S.C. § 4241(a). We have recognized that, under this
                                                                                 statute, “the district court has not only the prerogative, but the
                                                                                 duty, to inquire into a defendant’s competency whenever
inquiring repeatedly whether Defendant understood the nature of the              there is ‘reasonable cause to believe’ that the defendant is
proceeding and the consequences of his plea. Indeed, the court engaged           incompetent to stand trial.” United States v. White, 887 F.2d
in this inquiry sua sponte, unpromp ted by any exp licit claim by Defendant      705, 709 (6th Cir. 1989).
or his counsel that Defendant might not be competent to enter a plea. In
addition, the lower court afford ed D efendant ample opp ortunity to support
his claim of incompetency by granting his request for an evaluation. This
                                                                                   For ease of analysis, we assume for present purposes that
evaluation, of course, confirmed the court’s own initial assessment that         Defendant’s statements at the September 21, 2000 plea
Defendant was competent to enter a plea. Under these facts, we cannot            hearing provided “reasonable cause to believe” that
imagine how the district court could be dee med to have abu sed its              Defendant might be “mentally incompetent” within the
discretion.                                                                      meaning of § 4241(a). It follows, under this assumption, that
     Nor are we troubled by the district court’s failure, in its order denying
                                                                                 the district court erred in going forward with the plea hearing
Defendant’s motion to withdraw his plea, to address each of the several          without first employing the process set forth in § 4241 for
considerations endo rsed b y this court in United States v. Bash ara, 27 F.3d    determining a defendant’s competency. Even so, this surely
1174, 118 1 (6th Cir. 1994 ), cert. denied, 513 U.S. 1115 (1995). As we          was the very essence of a “harmless error,” since all pertinent
have elsewhere exp lained, it is “unnecessary to addre ss each of these          portions of this process subsequently were employed at the
factors” where a defendant fails, at the threshold, to identify any “fair and    behest of Defendant himself.
just reason” for permitting him to withdra w his plea. United States v.
Bazzi, 94 F.3d 1025, 1027 (6th C ir. 199 6) (citing the “fair and just reason”
standard of former Fed. R. Crim. P. 32(d), now incorporated into Fed. R.           Upon a showing or finding of “reasonable cause” under
Crim. P. 11(d)(2)(B)). Such is the case here, where the district court           § 4241(a), a court is required to order a hearing to address the
fairly addressed the issue of Defendant’s competency to enter a plea —           matter of the defendant’s competency. See 18 U.S.C.
and likely would have revisited the issue at sentencing, had Defendant not       § 4241(a). Prior to this hearing, the court “may order that a
abandoned it — and this was the sole reason given by Defendant for
seeking to withdraw his plea.
                                                                                 psychiatric or psychological examination of the defendant be
No. 01-5881                    United States v. Denkins     15   16    United States v. Denkins                     No. 01-5881

conducted, and that a psychiatric or psychological report be     at sentencing whether he wished to pursue the issue of
filed with the court.” 18 U.S.C. § 4241(b). The statute          Defendant’s competency, he expressly withdrew his objection
further provides:                                                in light of the outcome of the competency evaluation.
                                                                 Likewise, on appeal, Defendant does not point to any further
    If, after the hearing, the court finds by a preponderance    evidence bearing on his competency that might have been, but
  of the evidence that the defendant is presently suffering      was not, offered for the district court’s consideration at
  from a mental disease or defect rendering him mentally         sentencing. We know of no authority, and Defendant has not
  incompetent to the extent that he is unable to understand      cited any, for the proposition that § 4241 mandates a hearing
  the nature and consequences of the proceedings against         even when there is no prospect of meeting the statutory
  him or to assist properly in his defense, the court shall      standard of incompetency. Defendant and his counsel
  commit the defendant to the custody of the Attorney            evidently concluded that this standard could not be satisfied,
  General. The Attorney General shall hospitalize the            and the district court was not obligated to press forward
  defendant for treatment in a suitable facility . . . .         despite Defendant’s abandonment of the issue. Even
                                                                 assuming, as we do here, that Defendant’s testimony at the
18 U.S.C. § 4241(d).                                             plea hearing provided “reasonable cause” to question his
                                                                 competency, this “cause” surely was dissipated by the results
   Under the assumption that Defendant’s statements at the       of the competency examination. See United States v. Giron-
September 21, 2000 plea hearing should have triggered these      Reyes, 234 F.3d 78, 81 (1st Cir. 2000) (“Initial competency
statutory mechanisms, the district court would have been         hearings under [§ 4241](a) are not mandated absent
required to order a hearing on the issue of Defendant’s          reasonable cause because the evidence of competency may be
competency to enter a plea. Prior to this hearing, the court     so overwhelming as to render any such hearing a superfluous
was empowered to order that Defendant be referred for a          formality.”); United States v. Lebron, 76 F.3d 29, 32 (1st Cir.)
competency examination. Yet, regardless of whether the           (“If a psychiatrist has determined that a defendant is
district court perceived, or should have perceived, that such    competent, a court is not required to hold a further evidentiary
an evaluation was desirable, Defendant himself, through his      hearing absent extenuating circumstances.”), cert. denied, 518
new counsel, filed a motion requesting this very procedure.      U.S. 1011 (1996).
In its January 18, 2001 Order, the district court granted this
request, and directed that Defendant be referred for a             Defendant suggests, however, that the order of events here
competency evaluation. The court further ordered that the        was significant, and that he suffered harm as a result of the
resulting report “should address the question of (1) was         district court accepting his plea before referring him for a
defendant competent when he entered his plea and (2) is he       competency evaluation. We fail to discern any legal
competent to proceed with sentencing.” (1/18/2001 Order,         significance in this chronology, at least under the facts of this
J.A. at 46.) The report addressed both of these issues,          case. In ordering the competency evaluation, the court
answering both inquiries in the affirmative.                     instructed that this process should address Defendant’s
                                                                 competency at the time he entered his plea. The resulting
   At this point, all that remained under § 4241 was the         report opined that Defendant was competent to enter his plea,
hearing, at which the district court would have been obliged     thereby confirming the lower court’s own assessment at the
to determine whether Defendant was incompetent within the        plea hearing. If this report had been available before the
meaning of the statute. Yet, when defense counsel was asked
No. 01-5881                    United States v. Denkins     17    18   United States v. Denkins                     No. 01-5881

hearing, it can hardly be said that the district court would      with his lawyers and a reasonable degree of rational and
have been less likely to accept Defendant’s plea.                 factual understanding of the proceedings against him.”
                                                                  United States v. Ford, 184 F.3d 566, 580 (6th Cir. 1999), cert.
  We do not mean to suggest that timing can never matter.         denied, 528 U.S. 1161 (2000).
A different analysis might pertain, for example, where the
evidence indicates that the defendant’s condition fluctuates         It would be difficult to find such a due process violation
over time, or where there is a substantial temporal gap           here, where the district court’s assessment of Defendant’s
between a defendant’s competency evaluation and the               competency at the plea hearing was subsequently confirmed
proceeding or hearing at which his competency is called into      by qualified mental health professionals, and where the record
question. See Pate v. Smith, 637 F.2d 1068, 1072 (6th Cir.        contains no professional opinion to the contrary. Nor did
1981) (noting that “a retrospective determination [of a           Defendant exhibit irrational behavior at the plea hearing, or
defendant’s competency] may satisfy the requirements of due       otherwise act in a way that called his competency into
process if it is based on evidence related to observations made   question. To the extent that Defendant’s statements regarding
or knowledge possessed at the time of trial”). In this case,      voices and ringing in his ears raised concerns about his
however, Defendant does not claim that the timing of his          mental condition, the district court did not ignore this
competency evaluation affected its outcome, or that an earlier    testimony, but instead explored the matter further. In
examination might have produced a different result.               response, both Defendant and his counsel expressly assured
Accordingly, if the district court violated § 4241 by accepting   the court that Defendant understood the nature of the charges
Defendant’s plea before ordering a competency examination,        and the consequences of his plea. As demonstrated by our
this error surely was harmless.                                   precedents, these circumstances did not compel the court
                                                                  below to order a competency hearing. See Williams, 696 F.2d
   This leaves only the question whether Defendant’s              at 465, 467; Owens v. Sowders, 661 F.2d 584, 585-86 (6th
statements during the plea colloquy itself were so indicative     Cir. 1981). Rather, we find that the district court’s plea
of incompetency that the district court was compelled, as a       colloquy adequately protected Defendant’s right to due
matter of basic due process, to refuse Defendant’s plea and       process.
instead convene a competency hearing. The Supreme Court
has observed that “the conviction of an accused person while      C. The District Court Properly Considered Defendant’s
he is legally incompetent violates due process,” and has             Prior Drug Convictions in Computing His Sentence.
instructed that a hearing is required “[w]here the evidence
raises a bona fide doubt as to a defendant’s competence to           As his final issue on appeal, raised in a pro se submission,
stand trial.” Pate v. Robinson, 383 U.S.375, 378, 385, 86 S.      Defendant argues that the district court erred in relying on his
Ct. 836, 838, 842 (1966) (internal quotations and citations       prior drug convictions to trigger an enhanced statutory
omitted). On this matter, we ask “[w]hether a reasonable          sentencing range. Specifically, Defendant contends that the
judge, situated as was the trial court judge whose failure to     Government failed to give proper notice of its intent to rely
conduct an evidentiary hearing is being reviewed, should have     upon these prior convictions, and that the district court failed
experienced doubt with respect to competency to stand trial.”     to determine whether the prior convictions were valid. We
Williams v. Bordenkircher, 696 F.2d 464, 467 (6th Cir.), cert.    find no merit in the first of these challenges, and hold with
denied, 461 U.S. 916 (1983). The test of competency, in turn,     regard to the second that any error was harmless.
“is whether [the defendant] had sufficient ability to consult
No. 01-5881                    United States v. Denkins      19    20   United States v. Denkins                     No. 01-5881

  The procedures governing the use of prior convictions in         light of the drug quantity alleged in the indictment. See 21
sentencing are set forth at 21 U.S.C. § 851. Under subsection      U.S.C. § 841(b)(1)(B). Moreover, the court expressly
(a)(1) of this statute, a person cannot be “sentenced to           informed Defendant at the plea hearing that he faced a 10-
increased punishment by reason of one or more prior                year mandatory minimum sentence. (See 9/21/2000 Hearing
convictions, unless before trial, or before entry of a plea of     Tr. at 14, J.A. at 87.) Thus, Defendant was given proper
guilty, the United States attorney files an information with the   notice, in accordance with the dictates of § 851(a)(1), of the
court (and serves a copy of such information on the person or      Government’s intended reliance on these two prior felony
counsel for the person) stating in writing the previous            convictions.
convictions to be relied upon.” 21 U.S.C. § 851(a)(1). The
statute further dictates that a defendant must file a written        Nonetheless, Defendant correctly notes that the district
response if he “denies any allegation of the information of        court failed to conduct the inquiry dictated by § 851(b). In
prior conviction, or claims that any conviction alleged is         particular, while Defendant neither objected to the portion of
invalid.” 21 U.S.C. § 851(c)(1). Finally, the statute imposes      the presentence report detailing his prior convictions nor
a duty of inquiry upon the district court:                         raised this matter at sentencing, the court did not inquire
                                                                   before sentencing Defendant whether he affirmed or denied
    If the United States attorney files an information under       the two prior convictions disclosed in the July 10, 2000
  this section, the court shall after conviction but before        information. We have held that “a failure to engage in the
  pronouncement of sentence inquire of the person with             colloquy required by section 851(b) is subject to harmless
  respect to whom the information was filed whether he             error analysis.” United States v. Hill, 142 F.3d 305, 313 (6th
  affirms or denies that he has been previously convicted          Cir.), cert. denied, 525 U.S. 898 (1998).
  as alleged in the information, and shall inform him that
  any challenge to a prior conviction which is not made              As demonstrated by the facts and holding of Hill, the lower
  before sentence is imposed may not thereafter be raised          court’s error here was harmless. In Hill, as in this case, the
  to attack the sentence.                                          Government filed the required information disclosing two
                                                                   prior drug convictions, but the defendant “did not object to
21 U.S.C. § 851(b).                                                the presentence report, which referred to his prior
                                                                   convictions,” and he “also did not object at sentencing.” Hill,
  In this case, contrary to Defendant’s assertion, the             142 F.3d at 313. Accordingly, we found “no indication in the
Government complied with § 851(a)(1) by filing a July 10,          record that defendant ever complied with the mechanisms of
2000 information with the district court and serving a copy of     section 851(c) to notify the district court that he would
this information upon defense counsel. (See 7/10/2000 Prior        challenge these convictions.” 142 F.3d at 313. Because of
Conviction Information, J.A. at 36.) This information, filed       the defendant’s failure to invoke the statutory mechanism for
two months before Defendant’s September 21, 2000 plea              contesting the Government’s statement of his prior
hearing, disclosed two prior felony convictions: (i) an            convictions, we held that there was “no reason for [the]
April 3, 1998 Ohio conviction for trafficking in drugs, and (ii)   district court to conduct a hearing on the validity of the prior
a November 30, 1995 Connecticut conviction for possession          convictions.” 142 F.3d at 313. More specifically, we held
of narcotics. Either of these prior convictions, standing alone,   that “the district court’s failure to engage in the colloquy
would suffice to trigger the 10-year mandatory minimum             described in section 851(b) [wa]s harmless” where,
sentence that the district court imposed upon Defendant, in        “notwithstanding repeated opportunity, defendant did not
No. 01-5881                          United States v. Denkins           21

challenge his prior convictions before the district court.” 142
F.3d at 313.
   Precisely the same can be said here. Defendant neither
filed the requisite response under § 851(c)(1) challenging the
validity of his prior drug convictions, nor did he object at
sentencing to the use of these convictions to trigger a
statutory minimum 10-year term of imprisonment.4 Under
Hill, this absence of any challenge or objection renders
harmless the district court’s failure to conduct the inquiry
called for under § 851(b). Consequently, we affirm the use of
Defendant’s prior drug convictions in computing his sentence.
                        IV. CONCLUSION
  For the reasons set forth above, we AFFIRM the conviction
and sentence of Defendant/Appellant Abraham Denkins.




    4
      Even on ap peal, Defendant has not suggested any basis for
questioning the validity of either of the prior drug convictions relied upon
in sentencing. T o the contrary, in one o f his pro se subm issions to this
court, Defendant states that “I have o ne weed ca se and one n[a]rco [t]ic
case w[hi]ch was blown out of proportion.” (Appellant’s 9/5/2002 Br. at
3.)
