                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                   FILED
                                                         U.S. COURT OF APPEALS
                               No. 10-11165                ELEVENTH CIRCUIT
                           Non-Argument Calendar            FEBRUARY 9, 2011
                         ________________________               JOHN LEY
                                                                 CLERK
                    D.C. Docket No. 1:09-cr-20046-JAL-3

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

LAZARO MATEO,
a.k.a. Caravela,
a.k.a. Ricky

                                                           Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                              (February 9, 2011)

Before HULL, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

     Lazaro Mateo appeals his conviction and his lifetime term of supervised
release for conspiracy to possess with intent to distribute heroin, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A)(i) and 846. After review, we affirm.

                                I. BACKGROUND

A.    Indictment and Plea Agreement

      In 2008, law enforcement conducted an extensive undercover investigation

into a heroin trafficking network in the Miami area and used wire taps,

surveillance and controlled buys with a confidential informant. Defendant Mateo

worked for the main heroin supplier, codefendant Willie Berrios. Berrios

provided heroin to codefendants Julio Borges and Howard Burgos, who, in turn,

supplied many other distributors.

      A 28-count superseding indictment was brought against Mateo and sixteen

codefendants, including Berrios and Borges. Pursuant to a plea agreement, Mateo

pled guilty to Count 1, the heroin conspiracy count. The plea agreement contained

a sentence appeal waiver that waived Mateo’s right to appeal his sentence “unless

the sentence exceeds the maximum permitted by statute or is the result of an

upward departure and/or a variance from the guideline range that the Court

establishes at sentencing.”

B.    Plea Colloquy

      At the plea hearing, the district court elicited from Mateo that he: (1) was

                                          2
forty years old and had a sixth or seventh grade education; (2) was not under the

influence of any drug, medication or alcoholic beverage, either at the hearing or

while discussing his criminal case with his attorney; (3) was not recently under the

care of a doctor or psychiatrist; and (4) had not recently been hospitalized.

At one point, Mateo did not immediately respond to one of the district court’s

questions. His attorney offered to explain it to Mateo and stated, “he has some

issues that we will be flushing out between now and the sentencing, but we’re

confident that he can - -.” The district court rephrased the question, and Mateo

was able to respond.

      The district court read Count 1 to Mateo and asked the government to give a

proffer of the facts. The government stated that Defendant Mateo engaged in

multiple intercepted cell phone calls with codefendant Berrios and delivered

heroin pursuant to Berrios’s instructions. During one phone call, Berrios directed

Defendant Mateo to confirm that 500 grams of heroin were at a warehouse, which

Mateo did. In another phone call, Berrios directed Mateo to take 1 kilogram of

heroin from the warehouse to codefendant Borges. On that occasion, Mateo was

stopped by police, and a search of his car revealed 999.3 grams of heroin. A

subsequent search of the warehouse revealed a further 2.68 kilograms of heroin.

The government advised that the parties agreed that Mateo facilitated the

                                          3
distribution of at least 1.5 kilograms of heroin during the conspiracy.

      The district court asked Mateo whether he understood the charges against

him, and Mateo replied, “Yes, Ma’am.” The district court asked Mateo if he

admitted the facts as stated by the government, and Mateo replied, “Yes, I do.”

The district court confirmed with Mateo that the government’s factual proffer was

correct and that Mateo did not have any changes or corrections.

      The district court also confirmed with Mateo that he understood that: (1) the

mandatory minimum imprisonment term was ten years and the maximum

imprisonment term was life; (2) after Mateo completed his imprisonment term, he

would serve a period of supervised release, with a minimum of a five-year term

and a maximum of a life term; (3) the court could not determine Mateo’s advisory

guidelines range until after the presentence investigation report (“PSI”) was

prepared; (4) the court would consider all the sentencing factors; and (5) the

ultimate sentence imposed might be different from any estimate given to Mateo by

his attorney.

      The district court asked Mateo: (1) if his guilty plea was being made freely

and voluntarily, to which Mateo replied, “Yes, Ma’am”; and (2) if anyone forced

or threatened him to plead guilty or if anyone had made representations to him,

other than the plea agreement, to convince him to plead guilty, and Mateo replied,

                                          4
“No, Ma’am.” Mateo indicated that he was satisfied with his attorney and that he

had adequate time to confer with his attorney about the conspiracy charge, the

proceedings and all matters related to the charge.

      The district court read Mateo the plea agreement and asked Mateo if he had

read the agreement before he signed it. Mateo indicated that the plea agreement

was read to him and that he discussed the agreement with his attorney. Mateo

confirmed that he: (1) understood the terms of the agreement; (2) understood that

he was giving up his right to appeal the sentence; (3) had entered into the waiver

of his appellate rights freely and voluntarily; (4) had fully discussed the appeal

waiver with his attorney; and (5) understood that, if the court accepted his guilty

plea, he would be bound by the plea, even if the sentence was more severe than

expected.

      The district court asked Mateo’s counsel about Mateo’s “issues” that he

would explore pending sentencing. Mateo’s counsel indicated that these were

“[d]iminshed capacity-type issues” and that Mateo “ha[d] a history, and [the

defense was] doing a psychological workup on him.” The district court asked

Mateo’s defense counsel if he was asserting a competency issue “at this time,” and

defense counsel replied that he was not. The district court found that Mateo had

entered into the sentence appeal waiver knowingly, freely and voluntarily and that

                                          5
Mateo was “fully competent and capable of entering an informed plea, that [he

was] aware of the nature of the charge and the consequences of the plea and that

the plea of guilty [was] a knowing and voluntary plea.” The district court

accepted Mateo’s guilty plea.

C.     PSI

       The PSI: (1) assigned a base offense level of 34, pursuant to U.S.S.G.

§ 2D1.1(c)(3), based on drug quantity; (2) raised the offense level to 37, pursuant

to U.S.S.G. § 4B1.1(a), because Mateo was a career offender;1 (3) applied a three-

level decrease, pursuant to U.S.S.G. § 3E1.1(a)-(b), for acceptance of

responsibility. With a total offense level of 34 and a criminal history category of

VI pursuant to U.S.S.G. § 4B1.1, the PSI recommended an advisory guidelines

range of 262 to 327 months’ imprisonment and a term of supervised release of “at

least five years.”

       The PSI indicated that Mateo reported: (1) having a learning disability his

entire life and receiving counseling in school; and (2) being hospitalized as an

infant for inhaling an unknown chemical, which he believed may have contributed

to his learning disability. The PSI noted that during the presentence interview,


       1
        The PSI identified two prior felony crimes of violence: (1) 1991 convictions for burglary
of a conveyance, grand theft, aggravated assault and unlawful possession of a firearm; and (2)
1993 convictions for second degree murder, attempted robbery and burglary with assault.

                                                6
Mateo “appeared slow and had difficulty recalling any past treatment and dates.”

      The PSI summarized the findings of Dr. Heather Holmes, who evaluated

Mateo in 2009 and diagnosed him with depressive disorder and learning disorder.

Dr. Holmes found that Mateo had a learning disability similar to dyslexia and an

I.Q. score of 66, “which [was] typically a diagnostic indicator of mental

retardation.” However, Dr. Holmes “did not believe [Mateo] fell into that

category,” explaining that “the severity of [Mateo’s] learning disability impacted

his performance on the test and likely lowered his overall I.Q. score.”

      Mateo filed written objections to the PSI’s drug quantity used to calculate

his base offense level and his designation as a career offender.

D.    Motion for Downward Departure or Variance

      Mateo also filed a motion for a downward departure and/or variance. Mateo

argued that a downward departure was warranted: (1) under U.S.S.G. § 5K2.13

based on his diminished capacity; and (2) under U.S.S.G. § 4A1.3 because his

criminal history category overstated the seriousness of his criminal history. Mateo

attached a copy of Dr. Holmes’s evaluation of Mateo, which stated that: (1) Mateo

“displayed evidence of scholastic and cognitive difficulties”; (2) Mateo was only

able to read at a first-grade level; and (3) Mateo’s “ability to exercise the power of

reason is significantly impaired.” Dr. Holmes concluded that “[b]ased on this and

                                          7
his history of reliance on and/or manipulation by others . . . his diminished

capacity contributed substantially to the commission of the offense.”

E.    Sentencing

      At the sentencing hearing, Mateo withdrew his objections to the PSI. The

district court adopted the PSI’s factual findings and guidelines calculations and

found that Mateo’s advisory guidelines range was 262 to 327 months’

imprisonment.

      In support of his motion for a downward departure and in mitigation, Mateo

cited Dr. Holmes’s evaluation as to his diminished capacity. Mateo’s counsel

stated, “Now, clearly, I thought he was competent to go forward. He is. He also

knew that what he was doing was wrong.” Mateo’s counsel, however, argued that:

(1) Mateo’s diminished capacity significantly contributed to his commission of

the offense; (2) Mateo was essentially a “delivery boy” for codefendant Berrios

and did what Berrios told him to do; and (3) Mateo may have been under the

influence of others when he committed his prior felonies that resulted in his career

offender status. Defense counsel further stated that Mateo “understood from the

very beginning that what he did was wrong . . . [t]hat’s why [Mateo] didn’t want

me to file any motions. He didn’t want me to try the case. He just wanted to come

in and say he was guilty and he understood what he did and he understood that it

                                          8
was wrong.”

       The district court denied the downward departure request under U.S.S.G.

§ 4A1.3 to the extent it was based on Mateo’s criminal history. The district court,

however, granted a downward departure under U.S.S.G. § 5K2.13 based on

Mateo’s diminished capacity, noting Dr. Holmes’s findings that Mateo’s impaired

ability to reason significantly contributed to his commission of the offense.2

       Rather than the advisory guidelines range of 262 to 327 months, the district

court imposed a 180-month sentence, followed by a lifetime term of supervised

release. In determining the appropriate sentence, the district court considered the

18 U.S.C. § 3553(a) factors and noted that Mateo’s offense was a very serious

drug charge and Mateo had a very serious criminal history. The district court

stated:

       [G]iven the other Defendants who were sentenced as career offenders in
       this large-scale, serious drug-trafficking conspiracy and the diminished
       capacity of [Mateo] as well as the other [§ 3553(a)] factors, including
       the need to protect the public from further crimes of [Mateo], based
       upon this diminished capacity, [Mateo’s] inability to exercise the power
       of reason and [Dr. Holmes’s] finding that [Mateo is] subject to
       manipulation by others, I do find that there’s - - the factor of protecting
       the public from further crimes of [Mateo] is one I should consider, as
       well as the serious criminal history background that [Mateo] has, which


       2
        Section 5K2.13 authorizes a downward departure if “the defendant committed the
offense while suffering from a significantly reduced mental capacity” that “contributed
substantially to the commission of the offense.” U.S.S.G. § 5K2.13.

                                              9
      involves at least . . . two crimes of violence.
            And there seems to be a pattern of these crimes of working with
      others . . . he always seems to be involved with others as well as this
      case, where he seems to be doing the bidding of others.

The district court explained that the lifetime term of supervised release was

necessary “to prevent [Mateo] from being involved in further crimes, to being

manipulated by persons who may not have his best interests at heart and certainly

do not have society’s best interests at heart.”

      After Mateo objected to the supervised release term, the district court noted

that it would consider reducing or terminating supervised release if there was a

positive change based on the treatment Mateo received. The district court again

emphasized Mateo’s career offender status, serious criminal history and the

seriousness of his drug conspiracy offense. The district court explained that

Mateo “was subject to the same kind of manipulation even by the presentation of

the defense in this case as he seemed to be in the prior criminal history cases.”

The district court stressed that “sometimes it’s difficult for a family to provide that

kind of supervision, especially for, you know, a grown man. But in some

instances, the Court has to step up and provide the kind of supervision that may be

necessary for [Mateo].” Mateo filed this appeal.

                                 II. DISCUSSION



                                          10
A.     Failure to Hold a Competency Hearing Sua Sponte

       On appeal, Mateo argues that the district court erred by failing to inquire

sua sponte into his competency during the plea hearing.3

       A defendant has a due process right not to be tried or convicted while

incompetent. Drope v. Missouri, 420 U.S. 162, 171-72, 95 S. Ct. 896, 903-04

(1975). A defendant is incompetent if he lacks “sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding” and

“has a rational as well as factual understanding of the proceedings against him.”

Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995).

       The district court must sua sponte conduct a hearing to determine a

defendant’s mental incompetence “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.” 18 U.S.C. § 4241(a). This Court has concluded that the trial court must

sua sponte conduct a competency hearing when the information known to the

district court is “sufficient to raise a bona fide doubt regarding the defendant’s



       3
       This Court reviews for an abuse of discretion a district court’s failure to order sua sponte
a competency hearing. See United States v. Williams, 468 F.2d 819, 820 (5th Cir. 1972).

                                                11
competence.” Tiller v. Esposito, 911 F.2d 575, 576 (11th Cir. 1990).

      We consider three factors in deciding whether the trial court violated the

defendant’s due process rights by failing sua sponte to hold a competency hearing:

(1) evidence of the defendant’s irrational behavior; (2) the defendant’s demeanor

during the court proceedings; and (3) prior medical opinion regarding the

defendant’s competence to stand trial. Id. Our analysis “focuses on what the trial

court did in light of what it knew at the time of the trial or plea hearing.” Id.

“Because legal competency is primarily a function of [a] defendant’s role in

assisting counsel in conducting the defense, the defendant’s attorney is in the best

position to determine whether the defendant’s competency is suspect.” Watts v.

Singletary, 87 F.3d 1282, 1288 (11th Cir. 1996).

      Here, none of the factors suggests the district court sua sponte should have

held a competency hearing before accepting Mateo’s guilty plea. There was no

evidence of past irrational behavior by Mateo. Mateo’s demeanor during the

proceedings was unexceptional. Mateo gave appropriate, polite answers to the

district court’s questions and did not give the district court any reason to believe

that at the time of the plea hearing Mateo was unable to assist his counsel or

understand the charges against him. There was no medical opinion as to Mateo’s

competency.

                                          12
       While the issue of Mateo’s mental disability was discussed at the plea

colloquy, “the mere presence of mental illness or other mental disability at the

time [the defendant] entered his plea does not necessarily mean that he was

incompetent to plead . . . .” Bolius v. Wainwright, 597 F.2d 986, 990 (5th Cir.

1979). Although Mateo’s counsel indicated that a psychological workup was

being done on Mateo, the remarks of both the district court and Mateo’s counsel

make clear that all parties understood that this issue was to be a mitigating factor

at sentencing, not an allegation of incompetency. All the information before the

district court indicated that Mateo was able to participate meaningfully in the

proceedings against him. Further, Mateo’s counsel expressly declined to raise the

issue of competence at the plea hearing. Under these particular circumstances, the

district court did not abuse its discretion in failing to hold a competency hearing

sua sponte.4

B.     Plea Colloquy

       Mateo contends the district court erred at the plea colloquy by failing to

explain fully to him the pertinent elements of his offense, in violation of Federal

       4
         To the extent Mateo argues that the district court should have held a competency hearing
before sentencing, the factors do not weigh in his favor at that stage in the proceedings either. At
sentencing, Mateo behaved rationally and there is no evidence of past irrational behavior. While
the district court had the benefit of Dr. Holmes’s evaluation, Dr. Holmes never indicated that
Mateo was mentally incompetent. Additionally, Mateo’s counsel reiterated his belief that Mateo
was competent.

                                                13
Rule of Criminal Procedure 11.5

       “Rule 11 imposes upon a district court the obligation and responsibility to

conduct an inquiry into whether the defendant makes a knowing and voluntary

guilty plea.” United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir.

2000). “When accepting a guilty plea, a court must address three core concerns

underlying Rule 11: (1) the guilty plea must be free from coercion; (2) the

defendant must understand the nature of the charges; and (3) the defendant must

know and understand the consequences of his guilty plea.” Id. (quotation marks

omitted).

       Mateo’s brief focuses on the second core concern. Whether the district

court “complied with Rule 11’s mandate to satisfy itself that the [defendant]

understood the nature of the charges against [him]” depends on “the relative

difficulty of comprehension of the charges and of the defendant’s sophistication

and intelligence.” United States v. DePace, 120 F.3d 233, 237 (11th Cir. 1997)

(quotation marks omitted). “[F]or simple charges . . . a reading of the indictment,

followed by an opportunity given the defendant to ask questions about it, will

       5
         Because Mateo did not object to the plea proceedings in the district court, we review the
court’s compliance with Rule 11 for plain error. United States v. Brown, 586 F.3d 1342, 1345
(11th Cir. 2009), cert. denied, 130 S. Ct. 2403 (2010). To show the district court committed
plain error under Rule 11, the defendant must show “a reasonable probability that, but for the
error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74,
83, 124 S. Ct. 2333, 2340 (2004).

                                                14
usually suffice.” United States v. Lopez, 907 F.2d 1096, 1099 (11th Cir. 1990)

(quotation marks omitted).

      The conspiracy charge to which Mateo pled guilty was a simple one. See

United States v. Bell, 776 F.2d 965, 966, 969 (11th Cir. 1985) (concluding that the

offense of conspiracy to possess marijuana with intent to distribute, in violation of

§ 846, was a “simple” charge). The district court read the entire heroin conspiracy

count to Mateo, including allegations that many defendants, including Mateo,

agreed to possess with intent to distribute heroin and that the offense involved 1

kilogram or more of heroin. Mateo indicated to the district court that he had

discussed the charge with his attorney and that he understood the charge against

him. Furthermore, Mateo had an extensive criminal history, indicating he had

familiarity with the court system. Nothing in the record as a whole suggests

Mateo did not understand the nature of the conspiracy charge to which he pled

guilty.

      Alternatively, Mateo argues that the district court violated Rule 11 by

failing to ensure there was a sufficient factual basis to sustain his conviction.

Under Rule 11(b)(3), the district court, before entering a judgment on a guilty

plea, must first “determine that there is a factual basis for the plea.” Fed. R. Crim.

P. 11(b)(3). This requirement protects “a defendant who mistakenly believes that

                                          15
his conduct constitutes the criminal offense to which he is pleading.” United

States v. Frye, 402 F.3d 1123, 1128 (11th Cir. 2005) (quotation marks omitted).

“The standard for evaluating challenges to the factual basis for a guilty plea is

whether the trial court was presented with evidence from which it could

reasonably find that the defendant was guilty.” Id. (quotation marks omitted).

      In Mateo’s case, there was a sufficient factual basis for the district court to

accept Mateo’s guilty plea. Mateo admitted the facts in the government’s proffer,

including that: (1) he assisted in distributing at least 1.5 kilograms of heroin

pursuant to codefendant Berrios’s instructions; (2) on one occasion, Mateo

followed Berrios’s instructions to confirm that the warehouse had 500 grams of

heroin; (3) on another occasion, Mateo followed Berrios’s instructions to take 1

kilogram of heroin to another codefendant, Borges, and, while in transit, was

stopped by police, who found 999.3 grams of heroin in Mateo’s car; and (4) when

police searched the warehouse, they found another 2.68 kilograms of heroin.

From these facts, the district court reasonably could find that Mateo was

responsible for distributing over 1 kilogram of heroin pursuant to an agreement

with Berrios.

      Moreover, Mateo has not argued, much less shown, a reasonable probability

that, but for either alleged Rule 11 error, he would not have pled guilty. At the

                                          16
plea and sentencing hearings, Mateo did not express any reservation about

pleading guilty or indicate a desire to withdraw his plea and proceed to trial. To

the contrary, Mateo’s counsel informed the district court that Mateo did not want

counsel to try the case, but wanted counsel to inform the court that Mateo was

guilty and that Mateo understood that what he did was wrong. Under the

circumstances, Mateo has not shown plain error under Rule 11.

C.     Lifetime Supervised Release Term

       Mateo argues that his lifetime supervised release term is substantively

unreasonable.6 At the outset, we note that this sentencing issue falls within an

exception to Mateo’s sentence appeal waiver because the district court’s

supervised release term of life exceeded the advisory guidelines range of five

years of supervised release.7

       We review the substantive reasonableness of a sentence for abuse of

discretion in light of the totality of the circumstances. Gall v. United States, 552



       6
           Mateo raises no procedural challenge to the imposition of his supervised release term.
       7
        Mateo also challenges his designation as a career offender. Mateo’s sentence appeal
waiver precludes review of this issue because it does not fall within any of the appeal waiver
provision’s exceptions. Mateo’s argument that the appeal waiver is unenforceable due to his
diminished capacity is without merit. The district court specifically questioned Mateo about the
sentence appeal waiver, and Mateo confirmed he had discussed the appeal waiver with his
attorney, understood he was giving up his right to appeal his sentence and was doing so freely
and voluntarily. See United States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993).

                                                  17
U.S. 38, 51, 128 S. Ct. 586, 597 (2007). The party challenging the sentence bears

the burden of establishing that the sentence is unreasonable in light of both the

record and the § 3553(a) factors.8 United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005). Although “[s]entences outside the guidelines are not presumed to be

unreasonable, . . . we may take the extent of any variance into our calculus.”

United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.), cert. denied, 129 S. Ct.

2847 (2009). However, we “must give due deference to the district court’s

decision that the § 3553(a) factors, on the whole, justify the extent of the

variance.” Gall, 552 U.S. at 51, 128 S. Ct. at 597.

       Here, Mateo has not met his burden to show that the lifetime term of

supervised release was substantively unreasonable. Mateo has an extensive

criminal history, with many of his offenses involving multiple codefendants. At

sentencing, Mateo’s counsel argued that Mateo may have been manipulated by

others to commit these prior offenses. Dr. Holmes’s evaluation did find that

Mateo’s mental disability impaired his ability to reason, made him susceptible to

       8
         The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).

                                                 18
being manipulated by others and significantly contributed to his commission of the

instant offense. And the district court left open the possibility that it would reduce

or terminate supervised release if Mateo responded well to counseling.

      Furthermore, the lifetime supervised release term was entirely consistent

with the district court’s grant of a U.S.S.G. § 5K2.13 downward departure for

diminished capacity (an 180-month sentence, which was a departure from the

guidelines range of 262 to 327 months). “Supervised release fulfills rehabilitative

ends, distinct from those served by incarceration.” United States v. Moriarty, 429

F.3d 1012, 1025 (11th Cir. 2005) (quotation marks omitted). Thus, the district

court could reasonably determine that Mateo’s mental disability lessened Mateo’s

culpability and the resulting need for incarceration, while at the same time

increasing Mateo’s need for monitoring and rehabilitation. See id. at 1025; see

also United States v. Johnson, 529 U.S. 53, 59, 120 S. Ct. 1114, 1119 (2000)

(providing that the “primary goal of supervised release is to ease the defendant’s

transition into the community after the service of a long prison term . . . or to

provide rehabilitation to a defendant who . . . still needs supervision and training

programs after release” (citation and brackets omitted)). Given the need to protect

the public and provide supervision and treatment to Mateo, the district court did

not abuse its discretion by imposing a lifetime term of supervised release.

                                          19
AFFIRMED.




            20
