                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0616n.06
                            Filed: August 24, 2007

                                           No. 05-4552

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE NORTHERN
v.                                                       )         DISTRICT OF OHIO
                                                         )
OKERA KIRK,                                              )                           OPINION
                                                         )
       Defendant-Appellant.                              )




BEFORE:        COLE and GRIFFIN, Circuit Judges; WATSON, District Judge.*

       R. GUY COLE, JR., Circuit Judge. Defendant-Appellant Okera Kirk was indicted under

18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm. Although Kirk entered into a plea

agreement with the United States, he now argues that he did not enter the plea knowingly,

voluntarily, or intelligently because of his drug addiction. For the reasons that follow, we AFFIRM

the judgment of the district court.

                                                 I.

       On June 8, 2005, Kirk was indicted on one count of being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1). On August 25, 2005, Kirk entered into a plea agreement with




       *
          The Honorable Michael H. Watson, United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 05-4552
United States v. Kirk

the Government in which he agreed to plead guilty to the charged offense.

        The district court referred the case to a magistrate judge, who conducted a plea hearing on

August 25, 2005. The magistrate judge issued a Report and Recommendation in which she

concluded that Kirk was competent to plead guilty, and that his plea was knowing, intelligent, and

voluntary. Following the plea hearing, the magistrate judge recommended that the district court

accept Kirk’s plea. The district court held a sentencing hearing on November 7, 2005. Kirk did not

raise the issue of his competency at either the plea or sentencing hearings. The district court

determined that the applicable Sentencing Guidelines range was 180 to 210 months’ imprisonment.

After noting Kirk’s prior criminal history, the court stated that it “could have easily sentenced [Kirk]

to the highest end of the Guideline range.” (Joint Appendix (“JA”) 57.) Ultimately, the court gave

“some consideration” to Kirk’s plea for mercy and his statements that he had changed, and sentenced

him to 190 months’ imprisonment.

        Kirk timely appealed to this Court.

                                                  II.

                                                  A.

        “A determination of competence is a factual finding, to which deference must be paid.”

Filiaggi v. Bagley, 445 F.3d 851, 858 (6th Cir. 2006). Because Kirk failed to object under Rule 11

of the Federal Rules of Criminal Procedure to the district court’s acceptance of his guilty plea, plain-

error review applies. United States v. Vonn, 535 U.S. 55, 59 (2002) (explaining that a defendant’s

failure to raise a Rule 11 error results in plain-error review on appeal); Fed. R. Crim. P. 52(b). Under

the plain-error standard of review,

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United States v. Kirk

       [f]irst, we are to consider whether an error occurred in the district court. Absent any
       error, our inquiry is at an end. However, if an error occurred, we then consider if the
       error was plain. If it is, then we proceed to inquire whether the plain error affects
       substantial rights. Finally, even if all three factors exist, we must then consider
       whether to exercise our discretionary power under Rule 52(b), or in other words, we
       must decide whether the plain error affecting substantial rights seriously affected the
       fairness, integrity or public reputation of judicial proceedings.

United States v. Mahon, 444 F.3d 530, 533 (6th Cir. 2006).

                                                B.

       On appeal Kirk raises a single claim: Kirk argues that he was not competent to enter into a

plea agreement because of his drug use, and that the district court should have ordered a competency

hearing when it recognized that he was a drug addict. (Appellant’s Br. 8-10.) The Government

maintains that Kirk was competent to plead guilty:

       After having the unique opportunity to observe Kirk’s demeanor, his coherent and
       responsive answers to every one of the court’s numerous questions, his ability to read
       and understand the written plea agreement, his ability to engage in detailed
       consultations with defense counsel, and in the absence of any expert medical
       evidence to the contrary, there was an ample record supporting the court’s finding
       that Kirk was competent and his guilty plea was a knowing and voluntary waiver of
       his rights.

(Appellee’s Br. 14.) The Government is correct. The record simply does not support a conclusion

that Kirk was not competent to plead guilty.

       The defendant’s due-process rights are violated “by a court’s failure to hold a proper

competency hearing where there is substantial evidence that a defendant is incompetent.” Filiaggi,

445 F.3d at 858 (citing Pate v. Robinson, 383 U.S. 375, 385-86 (1966)). A defendant is competent

to plead guilty if “the defendant has ‘sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding’ and ‘a rational as well as factual understanding of the

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No. 05-4552
United States v. Kirk

proceedings against him.’” Godinez v. Moran, 509 U.S. 389, 396-97 (1993) (quoting Dusky v.

United States, 362 U.S. 402, 402 (1960) (per curiam)); United States. v. Denkins, 367 F.3d 537, 547

(6th Cir. 2004); Stewart v. Morgan, No. 05-5177, 2007 WL 1451974, at *4 (6th Cir. May 11, 2007).

Thus, in determining whether the district court erred in failing to order a competency hearing sua

sponte, we ask “whether a reasonable judge, situated as was the trial court judge whose failure to

conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to

competency to stand trial.” Williams v. Bordenkircher, 696 F.2d 464, 466 (6th Cir. 1983); see also

Filiaggi, 445 F.3d at 858; United States v. Newton, 389 F.3d 631, 637 (6th Cir. 2004).

       Kirk did not raise the issue of his competency at either the plea or sentencing hearings.

Kirk’s argument that his competency was impaired when he entered into the plea agreement with

the Government is raised for the first time on appeal. We therefore review for plain error. See Vonn,

535 U.S. at 59.

       The facts adduced at Kirk’s plea and sentencing hearings support the district court’s

determination that Kirk was competent to plead guilty. The magistrate judge questioned Kirk

extensively in order to satisfy the requirements of Rule 11, and during this time Kirk was responsive

and coherent. (See JA 29-49.) Kirk responded to a range of questions without exhibiting any

concerns about his competency to enter into the plea agreement. He told the court he was twenty-

seven years old, that he had been shot in the knee before being incarcerated, that four months later

the bullet had not yet been removed, and that he was on “post-release control” for a prior state

conviction. The court asked Kirk whether he had “been treated for any mental illness or addiction

to alcohol or narcotic drugs” and although Kirk said “yes,” he clarified that he was treated for

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No. 05-4552
United States v. Kirk

“alcohol . . . when [he] was young.” (JA 33 (stating that the treatment for alcohol abuse occurred

when he “was like 13, 14”).) In response to the court’s question “[h]ave you taken any kind of

medication this morning,” Kirk said “no.” (Id.) Further, despite being asked by the court, neither

the Government nor Kirk’s attorney raised any concerns about Kirk’s competency at the plea

hearing. There is nothing in the transcript of Kirk’s plea hearing to indicate that Kirk was not aware

of the charges against him and the consequences of his guilty plea, that he was not competent to enter

such a plea, or that the plea was not voluntary and knowing.

       Moreover, at the sentencing hearing the district court noted that neither party had objected

to the magistrate judge’s recommendation regarding Kirk’s competency, and then asked Kirk’s

attorney if it was “the defendant’s position that the Court should accept the plea as well,” to which

Kirk’s attorney responded, “It is.” (JA 52.) Additionally, Kirk’s attorney told the court that he had

“known Mr. Kirk for several years,” and that after visiting him in prison, he had “walked out of there

feeling comfortable that Mr. Kirk has somehow come to peace with the changes in his life and

accepted a new way. . . . He has changed, and I think he has a better way ahead of him.” (JA 54-55.)

Kirk told the court that he had a difficult childhood because “I was raised with no father. . . .” (JA

55.) He also explained his predicament as follows:

       And being that I ran the streets a lot, I mean, I took into other guys and being that
       they, them guys was around me, I took them into being my family as well, you know,
       and that’s the only reason why I picked up a gun, was to help somebody out.

(Id.) Kirk apologized to the court for his behavior and asked for an opportunity to prove that he had

changed for the better:

       Ma’am, I just want to prove it. That’s all I’m asking. That’s all I’m asking is can I

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No. 05-4552
United States v. Kirk

        prove it. . . . If I ever in my life come back into your courtroom, you can do whatever
        you want with me. I just want to prove it. That’s all I want to prove to you. . . . I’m
        grown. I know how to take my responsibilities now and be a man. I don’t need no
        streets no more.

(JA 56.) Kirk’s statements, along with his attorney’s statements that Kirk was a changed man,

undercut his present argument that Kirk was addicted to drugs at the time of his plea. Further, the

plea-hearing transcript indicates that Kirk was incarcerated for at least four months prior to that

hearing.1 Presumably, Kirk would not have been using drugs while in prison, or at least not as

frequently or as consistently as he might have been if not incarcerated.

        Kirk sets forth no evidence indicating that he was abusing drugs at the time of his plea. As

the Fifth Circuit stated in Sanchez v. United States, 401 F.2d 771, 772 (5th Cir. 1968) (per curiam),

Kirks’ “bare allegations of his history of drug addiction [is] insufficient to raise the issue of lack of

mental competency.” Further, Kirk’s conduct during the proceedings supports a conclusion that he

was competent to plead guilty. Kirk’s conduct was not erratic or irrational. His responses to the

court’s questions during the plea and sentencing hearings, his attorney’s assessment of his positive

change in behavior, and his cogent plea for mercy at the sentencing hearing all support a conclusion

that a reasonable judge would not have doubted Kirk’s competency. See Filiaggi, 445 F.3d at 858

(stating that the question on appeal is “whether a reasonable judge . . . should have experienced

doubt with respect to [the defendant’s] competency to stand trial”). Given the lack of evidence

supporting Kirk’s argument that he was not competent to plead guilty because of his drug use, the


        1
        The magistrate judge inquired about Kirk’s leg and Kirk said he had been shot in the
knee before he was imprisoned. Kirk told the judge that this incident had occurred about four
months prior to the plea hearing.

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No. 05-4552
United States v. Kirk

district court did not err in concluding that Kirk was competent. As we explained in Mahon,

“[a]bsent any error, our inquiry is at an end.” 444 F.3d at 533.

       Lastly, nothing in the record indicates, and the parties do not argue, that the court failed to

comply with the requirements of Rule 11 of the Federal Rules of Criminal Procedure. The purpose

of Rule 11 is to “ensure that the district court is satisfied that the defendant’s plea is knowing,

voluntary, and intelligent.” United States v. Webb, 403 F.3d 373, 378 (6th Cir. 2005). “Rule 11

requires that a district court verify that the defendant’s plea is voluntary and that the defendant

understands his or her applicable constitutional rights, the nature of the crime charged, the

consequences of the guilty plea, and the factual basis for concluding that the defendant committed

the crime charged.” Id. at 378-79. Thus, “[b]efore entering judgment on a guilty plea, the court must

determine that there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). We have held that

“[w]here the crime is easily understood, . . . a reading of the indictment, or even a summary of the

charges in the indictment and an admission by the defendant, is sufficient to establish a factual basis

under Rule 11.” United States v. Williams, 176 F.3d 301, 313 (6th Cir. 1999) (quoting United States

v. Edgecomb, 910 F.2d 1309, 1313 (6th Cir. 1990) (internal quotation marks omitted)). Further, the

district court must be certain that the defendant understands “the nature of each charge to which the

defendant is pleading.” Fed. R. Crim. P. 11(b)(1)(G). “To satisfy this requirement, however, a

district judge ‘[i]n a simple case’ need only read the indictment to the defendant and permit the

defendant to ask questions about the charges.” Webb, 403 F.3d at 379 (quoting United States v.

Valdez, 362 F.3d 903, 908 (6th Cir. 2004) (alteration in original)).

       Here, the magistrate judge explained to Kirk that by pleading guilty he was waiving certain

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No. 05-4552
United States v. Kirk

constitutional rights, such as the right to a trial, and verified that Kirk was voluntarily pleading guilty

and was not being coerced or threatened to do so. The Government summarized the plea agreement

and Kirk’s attorney agreed that the terms of the agreement were correct. The magistrate judge then

proceeded to establish a factual basis for the plea by reading the facts of the charged offense to Kirk,

and asking Kirk if those facts were accurate. Kirk and his attorney both agreed that the facts as

stated in the plea agreement were correct. Additionally, the magistrate judge explained to Kirk the

elements of the felon-in-possession charge, and Kirk’s attorney acknowledged that he had reviewed

the plea agreement with Kirk prior to the plea hearing. We therefore conclude that the district

court’s plea hearing was not erroneous under Rule 11 and that the district court properly accepted

Kirk’s guilty plea.

                                                   III.

        For the foregoing reasons, we AFFIRM the judgment of the district court.




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