           Case: 15-14131   Date Filed: 09/01/2017   Page: 1 of 15




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-14131
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:13-cr-20138-CMA-1


UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

versus

FRANKIE JERMAINE ANDERSON,

                                          Defendant - Appellant.
                       ________________________

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

                            (September 1, 2017)

Before HULL, MARCUS, and FAY, Circuit Judges.

PER CURIAM:
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      Defendant Frankie Anderson appeals his convictions on the grounds that he

lacked the mental competence to enter a guilty plea at the time of his April 2, 2013

plea hearing. Anderson suffers from schizophrenia and now contends that the

district court should have sua sponte ordered a competency hearing to evaluate his

competency to enter a guilty plea. The government responds that Anderson’s

appeal is untimely and that the district court did not err by accepting Anderson’s

guilty plea. After thorough review, we affirm.

                              I.      BACKGROUND

A.    Criminal Information and Plea Agreement

      On March 7, 2013, a criminal information charged Anderson with

(1) conspiring to defraud the United States by knowingly receiving, concealing,

and retaining over $1,000 in federal tax refund checks, knowing that the checks

had been embezzled, stolen, purloined, and converted, in violation of 18 U.S.C.

§ 371, (Count One) and (2) theft of government property, in violation of 18 U.S.C.

§ 641 (Count Two). Specifically, the information stated that Anderson brought

thousands of fraudulently obtained tax refund checks in other people’s names to

his co-conspirator’s check cashing store. From February 2012 through June 2012,

Anderson knowingly and fraudulently cashed more than seven million dollars in

tax refund checks.




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      On April 2, 2013, Anderson pled guilty to both counts. In the plea

agreement, Anderson agreed to fully cooperate with the government by providing

information, testifying if needed, and working in an undercover role. The

government reserved the right to, in its sole discretion, review Anderson’s

cooperation and make a motion for a sentence reduction under U.S.S.G. § 5K1.1 or

18 U.S.C. § 3553(e).

      In connection with the plea agreement, Anderson admitted in a written

factual proffer that he cashed thousands of fraudulently obtained tax refund checks

in amounts totaling over seven million dollars. Anderson received approximately

20% of the face value of the checks and used the money to buy real property and

multiple luxury cars.

B.    Plea Hearing

      On April 2, 2013, the district court held a plea hearing. At the plea hearing,

the district court asked Anderson a series of questions before accepting Anderson’s

guilty plea. The district court instructed Anderson to say something if he did not

understand a question and told Anderson that he would be allowed to speak to his

attorney off the record should he so desire.

      The district court asked Anderson if he had “ever been treated for a mental

illness or an addiction to narcotic drugs.” Anderson replied: “Yes.” Anderson had

been treated for schizophrenia. The district court asked Anderson if he was taking


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any medication, what it was, and how often he took it. Anderson admitted that he

was taking medication daily but did not remember the name of it.

      The district court then asked Anderson: “Does that medication affect your

ability to make decisions and control your own conduct?” Anderson responded:

“No.” The district court followed up, asking: “Are you understanding everything

that’s happening here this morning?” Anderson answered: “Yes.”

      The district court continued to follow up, asking: “Do you believe that you

have any mental or physical condition or illness that prevents you from

understanding what’s happening here in court this morning?” Anderson again

answered: “No.” The district court similarly queried Anderson’s counsel about

Anderson’s mental competence: “[I]n your opinion, is your client competent to

enter a guilty plea?” Anderson’s counsel responded: “Yes, Your Honor.”

      The district court then confirmed with Anderson that Anderson had received

the criminal information and discussed the charges and the case with his attorney.

Anderson told the district court that he understood the charges against him.

Anderson’s counsel informed the district court that Anderson “is fully aware of the

consequences of his guilty plea and the deal” offered by the government, had

reviewed the charges, and had signed his confession. Anderson agreed with his

counsel’s statement. Anderson also stated that he had the opportunity to read the

plea agreement and to discuss it “fully” with his attorney.

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       The district court then went over the plea agreement with Anderson.

Anderson repeatedly assured the district court that he understood what was

happening, that he had no questions or concerns, and that he agreed with the

district court’s description of the plea agreement. Anderson specifically agreed

that the plea agreement made “no promises” with regard to a sentence. Anderson

also indicated that he understood and agreed that the government reserved the right

to evaluate his cooperation and had “sole discretion” to file a motion requesting a

sentenced reduction, which the district court would have no obligation to grant.

       The district court similarly reviewed the consequences of pleading guilty

with Anderson. Anderson stated that he understood the consequences. Anderson

again admitted to the stipulated facts in the factual proffer. Specifically, Anderson

conceded that the government could prove beyond a reasonable doubt that (1) from

February 2012 through June 2012, he knowingly brought fraudulently obtained

income tax refund checks totaling over seven million dollars to the check cashier;

(2) he received approximately 20% of the face value of the checks; and (3) on

November 28, 2012, he possessed 35 tax refund checks worth over one hundred

thousand dollars in the names of other people and obtained by fraud that he

intended to convert for his own benefit.

       The district court found Anderson competent and capable of entering a

guilty plea, stating:

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             It is the finding of the Court that the Defendant Frankie
      Jermaine Anderson is fully competent and capable of entering an
      informed plea, that he is aware of the nature of the charges and the
      consequences of his plea based upon his conversations with his
      attorney and the colloquy before the Court, that the plea of guilty is a
      knowing and voluntary plea supported by an independent basis in fact
      containing each of the essential elements of the offenses and that the
      agreement presented to the Court was voluntarily entered into and is
      not the result of force, threats or coercion. I also find the Defendant
      has entered his plea with the advice and the assistance of the effective
      and competent counsel.

The district court thus accepted Anderson’s guilty plea for Counts One and Two.

After the plea hearing, Anderson remained out of prison on bond but wore an

electronic monitoring bracelet.

C.    Presentence Report

      The Presentence Investigation Report (“PSI”) calculated Anderson’s total

offense level as 29 and assigned Anderson a criminal history category of III. The

PSI thus calculated an advisory guidelines range of imprisonment of 108 to 135

months. The PSI also noted that Count One had a term of imprisonment of zero to

five years and that Count Two had a term of imprisonment of zero to ten years.

      The PSI also discussed Anderson’s mental health. According to the PSI,

Anderson, who was born in 1972, reportedly began hearing voices and feeling

anxious at the age of 20. In 2003, Anderson was diagnosed with schizophrenia and

prescribed an anti-psychotic drug, risperidone.




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      On March 26, 2013, a doctor evaluated Anderson at the request of the

probation office. The doctor diagnosed Anderson with schizophrenia, chronic

paranoid type, and anxiety disorder. The doctor recommended that Anderson

attend monthly psychiatric medication management sessions, and Anderson

attended his first such therapy session on April 24, 2013.

      Anderson admitted to self-medicating with alcohol, marijuana, cocaine, and

Xanax to control his anxiety and admitted that he could benefit from a substance

abuse treatment program.

      Neither Anderson nor the government filed any objections to the PSI.

D.    Sentence

      On June 10, 2013, the district court entered its judgment and sentenced

Anderson to statutory maximum prison terms of 120 months, consisting of 60

months as to Count One and 120 months as to Count Two, served concurrently.

The district court ordered restitution in the amount of $9,292,228.40.

      At the sentencing hearing, the district court informed Anderson that he had

14 days to file a notice of appeal following the entry of the judgment.

E.    Motion for Specific Performance of the Plea Agreement

      On June 24, 2014, Anderson filed a pro se motion for “specific

performance” of his plea agreement, requesting that the district court compel the

government to acquiesce to a sentence reduction for Anderson under U.S.S.G.


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§ 5K1.1. Anderson claimed that he had provided more than substantial assistance

to the government by performing controlled buys and obtaining recorded

conversations of certain conspirators. Anderson also claimed that the government

put him and his wife in danger by releasing to the press that someone was

informing on those conspirators.

       On July 14, 2014, the district court denied Anderson’s motion. The district

court found that the government had sufficient, legitimate reasons for not filing a

motion for sentence reduction and that Anderson had not shown any improper

motive by the government.

F.     Appeal

       On August 30, 2015, Anderson, proceeding pro se, filed a notice of appeal of

the judgment against him. 1 Anderson appealed his convictions and sentences and

claimed that his poor mental health prevented him from understanding what was

going on when he pled guilty.

       This Court appointed the federal public defender to represent Anderson in

his appeal.




       1
          Under the prison mailbox rule, “a pro se prisoner’s court filing is deemed filed on the
date it is delivered to prison authorities for mailing.” Daniels v. United States, 809 F.3d 588, 589
(11th Cir. 2015) (per curiam) (quoting Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir.
2009)), cert. denied, 137 S. Ct. 40 (2016). Anderson signed his notice of appeal on August 30,
2015 and without evidence to the contrary we assume that is when Anderson delivered it to the
prison authorities. Id.
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      On appeal, Anderson argued first that the district court should have sua

sponte ordered a competency hearing in lieu of accepting his guilty plea and,

second, that his sentence was substantively unreasonable. The government filed a

motion to dismiss Anderson’s appeal due to an appeal waiver in Anderson’s plea

agreement.

      This Court granted the government’s motion to dismiss as to Anderson’s

claim that his sentence was unreasonable. United States v. Anderson, No. 15-

14131-CC at 3-4 (11th Cir. Jan. 19, 2017) (per curiam). This Court, however,

denied the government’s motion as to Anderson’s claim about his competency,

concluding that the terms of the waiver applied only to sentencing issues and did

not extend to his competency to plead guilty in the first place. Id. at 4. We are

thus left with only the competency issue in this appeal.

                                 II. DISCUSSION

A.    Timeliness of the Appeal

      Anderson filed this appeal on August 30, 2015, over two years after the

district court sentenced him on June 10, 2013. The government contends that this

lengthy delay makes Anderson’s appeal untimely.

      Federal Rule of Appellate Procedure 4 states that in a criminal case a

defendant’s notice of appeal must be filed within 14 days of the entry of the

judgment or order being appealed or the filing of the government’s notice of


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appeal, whichever is later. Fed. R. App. P. 4(b)(1). The district court may extend

the time to file a notice of appeal upon a finding of “excusable neglect or good

cause” but only “for a period not to exceed 30 days” from when the time to appeal

would otherwise expire. Fed. R. App. P. 4(b)(4). Rule 4(b)’s deadline is not

jurisdictional, but when the government properly makes a timeliness objection, we

must apply Rule 4(b)’s time limits. United States v. Lopez, 562 F.3d 1309, 1313-

14 (11th Cir. 2009).

      Anderson’s appeal came well after the district court entered its judgment

against him. What’s more, Anderson filed his appeal two years after a 30 day

extension would have expired. Because Anderson failed to file his appeal within

the time allowed by Rule 4(b), his appeal is untimely, and we must dismiss it.

Lopez, 562 F.3d at 1313-14.

      Anderson argues that the government forfeited any timeliness objection to

his appeal because during the time period for filing an appeal the government was

keeping him out of prison and working with him on efforts that he believed would

lead to the government filing a motion for sentence reduction. Anderson cites no

law in support of his position.

      Between the entry of judgment and the filing of this notice of appeal,

Anderson did file a motion to have the district court compel the government to

move for a sentence reduction. Anderson, however, never appealed the district

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court’s denial of that motion, and Anderson still filed this appeal over a year after

that denial. Anderson has provided no explanation for why it took him so long to

file an appeal after it became clear that the government would not file a sentence

reduction motion and after he had reported to prison. Thus, even if the government

somehow dissuaded Anderson from filing an appeal while he was assisting with an

investigation, we would still not conclude that the government forfeited its

timeliness objection because over a year has passed since Anderson knew that the

government would not move for a sentence reduction. Importantly too, the

government’s decision whether to move for a sentence reduction has no bearing on

whether Anderson had sufficient mental competency to enter a guilty plea.

B.     Need for a Competency Hearing

       Even if Anderson’s appeal was timely, we would deny his claim—that the

district court should have sua sponte ordered a competency hearing prior to

accepting Anderson’s guilty plea—on the merits.2

       The Due Process Clause gives every defendant the right not to be tried or

convicted while incompetent. United States v. Wingo, 789 F.3d 1226, 1235 (11th

Cir. 2015). “Competence to proceed to trial or to enter a guilty plea requires the

defendant to possess the capacity to understand the nature and object of the


       2
       “This Court reviews for abuse of discretion a district court’s decision not to order a
competency hearing prior to trial.” United States v. Perkins, 787 F.3d 1329, 1339 (11th Cir.
2015).
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proceedings against him, to consult with counsel, and to assist in preparing his

defense.” Id. at 1234–35 (citation omitted) (internal quotation marks omitted).

      Under 18 U.S.C. § 4241, the district court has the obligation to sua sponte

order a competency hearing if there is “reasonable cause” to believe that the

defendant is not competent to enter a guilty plea. 18 U.S.C. § 4241(a); Wingo, 789

F.3d at 1236. Specifically, § 4241(a) states that the district court “shall” on its own

motion order “a hearing to determine the mental competency” of a defendant, “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) (emphasis

added). Prior to such a competency hearing, the district court may order a

psychiatric or psychological evaluation of the defendant. 18 U.S.C. § 4241(b).

      This Court has identified three factors for determining whether the district

court failed to hold a sua sponte competency hearing: (1) evidence of the

defendant’s irrational behavior; (2) the defendant’s demeanor before the court; and

(3) prior medical opinion regarding the defendant’s competence to stand trial or

enter a guilty plea. See Tiller v. Esposito, 911 F.2d 575, 576 (11th Cir. 1990).

This analysis “focuses on what the trial court did in light of what it knew at the

time of the trial or plea hearing.” Id.

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      The district court did not abuse its discretion in (1) finding that Anderson

was competent to enter a guilty plea and (2) not sua sponte ordering a competency

hearing. All three Tiller factors support this conclusion, and no factor establishes

reasonable cause to believe that Anderson was incompetent to enter a guilty plea.

      First, Anderson cannot point to any evidence of irrational behavior.

Anderson points to his schizophrenia, but there is no indication in the record that

his schizophrenia is not reasonably controlled by his medication. Nor is there any

evidence suggesting that his schizophrenia inhibited Anderson’s ability either to

assist his attorney or to understand the plea agreement, its consequences, and the

charges against him. Indeed, at the plea hearing, Anderson discussed his

schizophrenia diagnosis with the district court and assured the district court that

neither his schizophrenia nor his medication prevented him from understanding the

court proceeding. What is more, Anderson’s attorney agreed that Anderson

understood both what was going on with his plea agreement and the charges

against him. Similarly, the PSI noted Anderson’s mental health condition but

provided no evidence of ongoing irrational behavior. The only evidence of

irrational behavior mentioned in the PSI was that Anderson began hearing voices

at age 20, which would have been in the early nineties, 20 years before the district

court sentenced Anderson in this case and ten years before Anderson was




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prescribed anti-psychotic medication. No evidence suggested that Anderson

continued hearing voices in 2013.

      Second, Anderson behaved normally and properly during the entire plea

hearing. Anderson answered all of the district court’s questions directly and

succinctly. Anderson did not act out or disrupt the proceedings in any way.

Indeed, the district court allowed Anderson to stay out on bond pending his

sentencing hearing, and Anderson continued to cooperate with the government.

      Third, there was no prior medical opinion stating that Anderson was

incompetent to enter a guilty plea. The probation office even had a doctor examine

Anderson, and that doctor returned no such finding. Instead, the doctor

recommended that Anderson attend monthly psychiatric medication management

therapy sessions. Anderson complied with that recommendation and attended such

a session prior to the plea hearing. Based on these three factors, the district court

did not abuse its discretion when it did not sua sponte order a competency hearing

or evaluation of Anderson.

      This Court’s decision in United States v. Diaz, 630 F.3d 1314 (11th Cir.

2011), does not help Anderson. In Diaz, this Court affirmed a district court’s order

allowing the government to involuntarily medicate defendant Michael Diaz in

order to restore him to competency to stand trial. Id. at 1335-36. Diaz was

psychotic and substantially impaired and had at various times been diagnosed with

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undifferentiated schizophrenia, paranoid schizophrenia, and chronic paranoid

schizophrenia. Id. at 1317-29. Diaz refused to cooperate with the medical staff,

participate in therapy sessions, take medication, or undergo any other type of

treatment. Id. at 1320. In stark contrast, Anderson has never been diagnosed as

psychotic or substantially impaired; he cooperated with the probation office’s

doctor and attended a therapy session; and he voluntarily takes his anti-psychotic

medication.

      Diaz does not stand for the proposition that anyone with schizophrenia is

incompetent to stand trial or enter a guilty plea. To the contrary, this Court in Diaz

concluded that, based on the medical evidence presented in that case, anti-

psychotic medication could render a defendant with schizophrenia competent to

stand trial or enter a guilty plea. Id. at 1332-33. Diaz thus does not support

Anderson’s claim.

                               III. CONCLUSION

      Based on the foregoing reasons, we conclude that Anderson’s appeal is

untimely and that the district court properly accepted Anderson’s guilty plea. We

therefore affirm Anderson’s convictions.

      AFFIRMED.




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