                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            APR 6 2004
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                     No. 03-1246
           v.                                            (D. Colorado)
 ERNEST NORMAN SHAIFER, also                       (D.C. No. 02-CR-217-RB)
 known as Hanif,

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before TACHA, Chief Circuit Judge, and       ANDERSON and BALDOCK , Circuit
Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Ernest Norman Shaifer a/k/a Hanif     1
                                                 pled guilty to one count of forcibly

assaulting and injuring by means of a dangerous weapon the chaplain at the

Federal Penitentiary in Florence, Colorado, in violation of 18 U.S.C. § 111(a)(1),

(b). Prior to sentencing, Shaifer filed a motion for downward departure based on

diminished mental capacity, pursuant to United States Sentencing Commission,

Guidelines Manual (“USSG”), §5K2.13 (Nov. 2002). The district court denied

Shaifer’s motion for downward departure and sentenced him to ninety-six months

imprisonment, followed by three years of supervised release.

       Shaifer’s appointed counsel has filed a brief pursuant to      Anders v.

California , 386 U.S. 738 (1967), because he has concluded that this appeal is

“wholly frivolous, after a conscientious examination of it,”       id. at 744, and he has

so advised this court and requests permission to withdraw as counsel. Shaifer has

filed a pro se supplement to the   Anders brief. After carefully reviewing the

record, we agree with Shaifer’s counsel that this appeal presents no non-frivolous

issues, so we grant counsel’s request to withdraw and we affirm Shaifer’s

sentence.




       1
           Shaifer apparently also uses the surname Brown.

                                            -2-
                                 BACKGROUND

      Shaifer was an inmate at the Federal Penitentiary in Florence, Colorado.

He worked at the Penitentiary chapel. George Kendall Hughes was employed by

the Bureau of Prisons as chaplain at the Penitentiary. On January 31, 2002,

Shaifer entered the chapel and stabbed Hughes in the head and chest without

warning or conversation, using a homemade shank. Hughes was taken to a

hospital for stitches and released the same day.

      Shaifer was indicted by a grand jury and initially pled not guilty. He

thereafter negotiated a plea agreement and, in a change of plea hearing, withdrew

his plea of not guilty and pled guilty to the count with which he had been charged.

The record of that change of plea hearing reveals that Shaifer participated fully in

the proceeding and the district court found he “voluntarily, knowingly,

intelligently, and intentionally” withdrew his earlier plea and “has now entered a

plea of guilty to Count 1.” Tr. at 24, R. Vol. III.

      Prior to sentencing, Shaifer filed a motion for downward departure based

on diminished mental capacity, pursuant to USSG §5K2.13. Included with that

motion was a forensic evaluation conducted by Dr. Doris C. Gundersen, in which

she concluded that Shaifer had an untreated bipolar disorder which had

“contributed to Mr. Shaifer’s past antisocial behavior and will continue to

interfere with his ability to adopt the degree of prosocial behavior necessary for


                                         -3-
advancement in the penal system.” Presentence Investigation Report (“PSR”),

Addendum Ex. A at 17. He also included a letter from Dr. William Hansen, in

which Dr. Hansen expressed the opinion that “[a]t the present time, it appears

possible (and perhaps even probable) that Mr. Shaifer has a bipolar mood

disorder.” Id. at Ex. B. At the sentencing hearing, Dr. Gundersen testified about

her diagnosis of Shaifer.

       Section 5K2.13 provides in pertinent part as follows:

       A sentence below the applicable guideline range may be warranted if
       the defendant committed the offense while suffering from a
       significantly reduced mental capacity. However, the court may not depart below the appli
the facts and circumstances of the defendant’s offense indicate a need to protect
the public because the offense involved actual violence or a serious threat of
violence; (3) the defendant’s criminal history indicates a need to incarcerate the
defendant to protect the public . . . .

USSG §5K2.13. Despite the existence of strong indications that Shaifer suffers

from a bipolar mood disorder which “more likely than not” played a substantial

role in Shaifer’s attack on Hughes, the court found that “the facts and

circumstances of this offense indicate the need to protect the public . . . because

this offense involved actual serious violence.” Tr. at 119, 120, R. Vol. II. The

court also found that “the defendant’s criminal history indicates a need to

incarcerate him to protect the public.”   Id. at 120. The court therefore denied the

motion for downward departure and sentenced Shaifer to ninety-six months

imprisonment.


                                           -4-
      Shaifer appeals, arguing the court erred in refusing to depart downward

pursuant to section 5K2.13, that the court erred in failing to order a competency

evaluation of him, and that his trial counsel were ineffective in failing to seek a

competency evaluation.   2




                                   DISCUSSION

      I. Downward Departure

      “We ‘cannot exercise jurisdiction to review a sentencing court’s refusal to

depart from the Guidelines, either upward or downward, unless the court refused

to depart because it interpreted the Guidelines to deprive it of the authority to do

so.’” United States v. Busekros , 264 F.3d 1158, 1159 (10th Cir. 2001) (quoting

United States v. Fortier , 180 F.3d 1217, 1231 (10th Cir. 1999) (collecting cases));

see also United States v. Brown , 316 F.3d 1151, 1154 (10th Cir. 2003). The

district court in this case recognized its authority to depart downward under

section 5K2.13, applied that section to the facts of this case and to Shaifer’s

offense, and “simply declined, on those facts, to enter the requested departure.”




      2
       Shaifer’s current appointed counsel addresses all three issues in his Anders
brief. Shaifer’s pro se supplement to that brief argues only the two issues
involving a competency determination. In the interest of thoroughness, we
address all three.

                                          -5-
Id. We therefore lack jurisdiction to review the court’s decision not to depart

downward.



       II. Failure to Order Competency Evaluation

       “A competency claim by a criminal defendant may implicate both

substantive and procedural due process.”        Gilbert v. Mullin , 302 F.3d 1166, 1178

(10th Cir. 2002). “‘A procedural competency claim is based upon a trial court’s

alleged failure to hold a competency hearing, . . . while a substantive competency

claim is founded on the allegation that an individual was tried and convicted

while, in fact, incompetent.’”      Id. (quoting McGregor v. Gibson , 248 F.3d 946,

952 (10th Cir. 2001) (en banc)). The same standard applies to a guilty plea.

Shaifer appears to raise primarily a procedural competency claim, arguing the

district court erred in failing to have a competency evaluation done, presumably

before Shaifer entered his guilty plea.

       To prevail on a procedural competency claim, Shaifer must “establish that a

reasonable judge should have had a bona fide doubt as to his competence at the

time [of his guilty plea].”      Id. (further quotation omitted). Further:

       We view the evidence in the record objectively, from the standpoint
       of a reasonable judge presiding over petitioner’s case at the time of
       trial. A petitioner establishes a bona fide doubt if he shows that a
       reasonable judge should have doubted whether petitioner had
       “sufficient present ability to consult with his lawyer with a
       reasonable degree of rational understanding” and whether petitioner

                                              -6-
      had “a rational as well as factual understanding of the proceedings
      against him.”

McGregor , 248 F.3d at 954 (quoting    Dusky v. United States , 362 U.S. 402, 402

(1960)). The record in this case is completely devoid of any indication that

Shaifer was unable to consult with his lawyer or that he lacked a rational and

factual understanding of the proceedings against him.

      Shaifer suggests in his supplement to the   Anders brief that there was a

hearing before he changed his plea from not guilty to guilty, in which there was

apparently a discussion of potential defense strategies. He alleges that the district

court judge stated that Shaifer’s proposed defense was a “hybrid duress-insanity

defense,” Defendant-Appellant’s    Anders Br. Supp. at 2, to which the government

attorney allegedly responded that, in light of that proposed defense, the

government might seek a competency evaluation.     3
                                                       That exchange does not

convince us that the district court judge had, or should have had, any question

about Shaifer’s competency to stand trial or to plead guilty. It simply suggests

that, had the case proceeded to trial, the defense might have involved some sort of

mental capacity defense, presumably similar to the diminished capacity downward

departure Shaifer sought at sentencing.




      3
       The record contains no transcript of the proceeding in which these
statements allegedly were made.

                                           -7-
       Moreover, to the extent Shaifer argues a substantive competency claim—

i.e., that he was incompetent when he entered his change of plea, the record of

that proceeding contains nothing suggesting he was incompetent. Further, the

district court specifically found him competent at the end of that proceeding, and

there is no error in that finding.   4




       III. Trial Counsel’s Effectiveness

       On August 5, 2003, Shaifer’s court-appointed assistant public defender,

Virginia Grady, sought to withdraw as appellate counsel, stating her



       The district court found as follows at the conclusion of the change of plea
       4

hearing:

             On this record considered as a whole, I enter the following
       findings of fact, conclusions of law and orders. That the defendant
       understands the charge filed and pending against him, which is the
       charge made the focus of his proposed plea agreement. . . . That Mr.
       Shaifer today is alert, competent, and sober, not now under the
       influence of or impaired by drugs, narcotics, marijuana, alcohol or
       medications.

             That the defendant understands each and every term and
       provision in his plea agreement . . . . That he has reviewed those plea
       agreement documents in their entirety, carefully and thoroughly, with
       his counsel.

             That Mr. Shaifer has now voluntarily, knowingly, intelligently,
       and intentionally withdrawn his earlier plea of not guilty to Count 1,
       and has now entered a plea of guilty to Count 1.

Tr. at 24, R. Vol. III.

                                         -8-
understanding that Shaifer’s appeal was primarily for the purpose of pursuing a

claim of ineffective assistance of counsel by Ms. Susan Cushman, formerly a

member of the federal public defender’s office, who represented Shaifer during

the presentence portions of his case. Shaifer’s supplement to the         Anders brief

makes it clear that he argues on appeal that both Ms. Cushman and Ms. Grady

were ineffective in failing to order a competency evaluation for him.

       “Generally, we will not resolve an ineffective assistance of counsel claim

on direct appeal when the claim has not been raised before the district court.”

United States v. Montoan-Herrera      , 351 F.3d 462, 465 (10th Cir. 2003) (citing

United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc)). “An

exception to the rule exists when ‘the record is sufficient, or where the claim

simply does not merit further factual inquiry.’”      Id. (quoting United States v.

Gordon , 4 F.3d 1567, 1570 (10th Cir. 1993)). We will review Shaifer’s claim of

ineffective assistance of counsel on direct appeal “because it does not merit

further factual inquiry and the record is sufficient to address his claim.”      Id.

       To establish ineffective assistance of counsel, Shaifer must show that

counsel’s performance was deficient and that the deficient performance

prejudiced him. Shaifer fails to show deficient performance. We have already

held that the record reveals nothing demonstrating that Shaifer was incompetent

to negotiate the plea agreement and plead guilty. To the contrary, the record


                                             -9-
reveals that he fully participated in the proceedings, with complete understanding

of the charges against him. His counsel was therefore not ineffective in failing to

have a competency evaluation performed.



                                 CONCLUSION

      For the foregoing reasons, we GRANT appointed counsel’s motion to

withdraw as counsel and we AFFIRM Shaifer’s sentence.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




                                        -10-
