           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         October 11, 2012

                                      No. 10-30735,                        Lyle W. Cayce
                                    consolidated with                           Clerk
                                      No. 11-30959


UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

LAWRENCE HUMPHREY,

                                                  Defendant - Appellant



                  Appeals from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:07-cr-20101


Before DAVIS, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant-appellant Lawrence Humphrey appeals his sentence for several
unlawful firearm possession convictions. He argues that the district court erred
by failing to hold an evidentiary hearing regarding his competency to be
sentenced after he completed pre-sentencing mental health treatment.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                   No. 10-30735, consol’d with No. 11-30959

Humphrey also contends that his sentence is procedurally and substantively
unreasonable. For the following reasons, we affirm Humphrey’s sentence.
                               BACKGROUND
      Humphrey was indicted on two counts of possessing a firearm as a felon
in violation of 18 U.S.C. §922(g) and one count of possessing a firearm with an
obliterated serial number in violation of 18 U.S.C. §922(k). His defense counsel
successfully moved to have Humphrey undergo a psychiatric examination to
determine his competency. In March and April 2008, Humphrey was examined
by a psychologist who concluded that Humphrey was unable to understand the
nature of the criminal proceedings and to assist in his own defense. In June
2008, the district court, without holding a hearing, declared Humphrey
incompetent to stand trial and ordered him committed to a hospital for mental
health treatment under 18 U.S.C. § 4241(d). In May 2009, the acting warden of
the facility where Humphrey was being treated filed a Certificate of Restoration
of Competency to Stand Trial attesting to Humphrey’s competency and attaching
a psychiatric report as support. See 18 U.S.C. § 4241(e).
      In July 2009, Humphrey appeared at his arraignment and entered a plea
of not guilty; he was later ordered detained pending trial. On December 8, 2009,
the district court set a date for a competency hearing. Defense counsel had
another psychiatric evaluation performed, and in February 2010, that doctor
submitted his report to the court concluding that Humphrey understood the
charges and the criminal proceedings, would be able to rationally consult with
counsel, and could assist counsel in preparing a defense. The district court then
cancelled the competency hearing at the parties’ mutual request. Prior to the
beginning of trial, defense counsel indicated that Humphrey was competent to
proceed. Upon completion of the trial, the jury convicted Humphrey on all three
counts of the indictment.



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        At a sentencing hearing on August 4, 2010, defense counsel requested that
the district court order that Humphrey’s sentence be served in a facility where
Humphrey could receive treatment for mental health problems.                           Counsel
acknowledged that he should have briefed the issue of sentencing Humphrey to
medical treatment under 18 U.S.C. § 4244.1 The court explained that it would
sentence Humphrey at the hearing, but instructed counsel to file a motion and
commented that it would later amend the sentence. The court imposed two
consecutive 120-month prison terms along with a concurrent 60-month prison
term.
        On August 11, 2010, the district court entered a judgment reflecting the
240-month total prison sentence. That same day, defense counsel filed a
“Memorandum Regarding Application of 18 U.S.C. § 4244,” which asserted that
Humphrey suffered from a mental disease or defect, specifically that he had an
IQ of 71 and experienced “severe psychosis and mental problems when suffering
the effects of PCP usage.” It also asserted that Humphrey required “access to
routine medical and mental health care.” Counsel stated that a hearing was
unnecessary and requested that the district court sentence Humphrey to mental
health treatment under § 4244(d). On August 17, 2010, the district court
vacated its prior judgment and sentenced Humphrey to a provisional 240-month
sentence under § 4244(d), ordering the Attorney General to place Humphrey in
a “suitable facility for care and treatment.”


        1
         See 18 U.S.C. § 4244(a) (“A defendant found guilty of an offense, or the attorney for
the Government, may, within ten days after the defendant is found guilty, and prior to the
time the defendant is sentenced, file a motion for a hearing on the present mental condition
of the defendant if the motion is supported by substantial information indicating that the
defendant may presently be suffering from a mental disease or defect for the treatment of
which he is in need of custody for care or treatment in a suitable facility. The court shall grant
the motion, or at any time prior to the sentencing of the defendant shall order such a hearing
on its own motion, if it is of the opinion that there is reasonable cause to believe that the
defendant may presently be suffering from a mental disease or defect for the treatment of
which he is in need of custody for care or treatment in a suitable facility.”).

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        The next year, on July 15, 2011,the district court received a letter from the
warden at the medical facility where Humphrey was receiving care, explaining
that the staff was of the opinion that Humphrey “should discontinue with
inpatient psychiatric treatment.” The warden attached a “mental status update”
supporting this view. In September 2011, the court held a joint sentencing and
competency hearing. It determined that the report, to which Humphrey did not
object, established that Humphrey was competent to be sentenced.
        During the sentencing phase of the hearing, the district court once again
imposed a sentence of 120 months on each of the two counts of possessing a
firearm as a felon, to run consecutively, and a 60 month term on the count of
possessing a gun with an obliterated serial number, to run concurrently with the
other two sentences. The court also imposed a three-year term of supervised
release.
        The district court entered judgment on November 3, 2011. Humphrey
timely appealed.
                                STANDARD OF REVIEW
        As Humphrey concedes that he did not raise below his present argument
regarding the district court’s failure to hold a competency hearing prior to the
final sentencing, we review that issue for plain error.2 We review Humphrey’s
final       sentence   itself    for    reasonableness.         See    United      States     v.
Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). In determining whether
the district court arrived at a reasonable sentence, we must first decide whether
the district court committed any procedural errors and then analyze whether the



        2
          The government argues that Humphrey induced the district court’s purported error
in failing to hold a hearing, such that we should only review under the even more deferential
“manifest injustice” standard for invited errors. See, e.g., United States v. Rodriguez, 602 F.3d
346, 351 (5th Cir. 2010); United States v. Green, 272 F.3d 748, 754 (5th Cir. 2001). Because
we conclude that Humphrey’s claim lacks merit even under the plain error standard, we need
not determine whether the invited error doctrine applies to these circumstances.

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sentence is substantively reasonable. Gall v. United States, 552 U.S. 38, 51
(2007).   Because Humphrey failed to adequately preserve his arguments
regarding procedural reasonableness below, we review those claims only for
plain error.    As he did preserve his challenge regarding substantive
reasonableness, we review that claim for abuse of discretion. See United States
v. Neal, 578 F.3d 270, 273 (5th Cir. 2009).
                                 DISCUSSION
I.    Competency Hearing
      18 U.S.C. § 4241(e) sets forth the procedure for determining whether a
defendant previously hospitalized as incompetent has regained competency. The
process is triggered when the director of the facility where the defendant is
hospitalized certifies to the court that the defendant has gained the ability to
understand the nature and consequences of the proceedings and assist in his
defense. 18 U.S.C. § 4241(e). Then, “[t]he court shall hold a hearing, conducted
pursuant to the provisions of section 4247(d), to determine the competency of the
defendant.”    Id.    Under § 4247(d), the defendant “shall be afforded an
opportunity to testify, to present evidence, to subpoena witnesses on his behalf,
and to confront and cross-examine witnesses who appear at the hearing.” Id.
§ 4247(d). The court is directed to order the defendant’s discharge from the
facility and schedule further proceedings “[i]f, after the hearing, the court finds
by a preponderance of the evidence that the defendant” is competent to proceed.
Id. § 4241(e). Humphrey argues that the district court committed plain error by
failing to hold the hearing prescribed by these provisions, despite the fact that
the defense agreed that Humphrey had regained competency to proceed.
      We conclude that, even assuming arguendo that the district court erred by
failing to hold a competency hearing, Humphrey cannot meet the standard for
reversal under plain error review. There are “four requirements for reversing
a trial court based upon plain error review: (1) ‘there must be an error or defect

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— some sort of [d]eviation from a legal rule — that has not been intentionally
relinquished or abandoned’; (2) ‘the legal error must be clear or obvious, rather
than subject to reasonable dispute’; (3) ‘the error must have affected the
appellant’s substantial rights’; and (4) ‘if the above three prongs are satisfied,
the court of appeals has the discretion to remedy the error — discretion which
ought to be exercised only if the error seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.’” United States v. Escalante-Reyes,
689 F.3d 415, 419 (5th Cir. 2012) (en banc) (alterations in original) (quoting
Puckett v. United States, 556 U.S. 129, 135 (2009)).
      Even assuming that Humphrey can satisfy the first prong, he cannot
satisfy the second or third.     As to the second prong, Humphrey has not
demonstrated that the district court committed an error that was “clear or
obvious, rather than subject to reasonable dispute.” See id. In Hutson, this
court held that a district court had “erred by proceeding to trial without making
a second competency determination” under 18 U.S.C. § 4241(e) where the
defendant had been “adjudged incompetent and committed to [a] federal
correctional facility . . . for psychological evaluation and treatment” but was then
certified by a treating psychiatrist to be “competent to stand trial.” Hutson, 821
F.2d at 1017-18. However, neither in Hutson nor in any other case have we
addressed the issue of whether it is error for a district court to fail to hold a
§ 4241(e) competency hearing where defense counsel agrees that the defendant
has recovered competency and that a hearing need not take place. In addressing
an analogous question, the First Circuit has indicated that it is not error for a
district court to decline to hold a pre-trial competency hearing after a defendant
has been hospitalized where the defense concedes that the defendant has
regained competency and agrees that no hearing is necessary. See United States
v. Muriel-Cruz, 412 F.3d 9, 14 (1st Cir. 2005) (“Subsections 4241(e) and 4247(d)
plainly contemplate that the issue of defendant’s competency vel non is to be

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resolved through the normal workings of the adversarial process, and there is
no reason to suppose that defense counsel would act contrary to the interests of
an incompetent client by failing to contest the conclusions of a subsection 4241(e)
certificate. . . . Although subsection 4241(e) . . . mandates a hearing, [it] leave[s]
the decision whether to contest competency primarily to the government and to
defense counsel.” (citations omitted)). Humphrey has not shown that the district
court’s failure to hold a competency hearing under the circumstances here
amounted to plain error.
      Nor has Humphrey demonstrated any effect on his substantial rights. “To
affect the defendant’s substantial rights, the defendant must demonstrate that
the error affected the outcome of the district court proceedings.” United States
v. Broussard, 669 F.3d 537, 553 (5th Cir. 2012). In Hutson, we explained that
even where a “district court err[s] by proceeding to trial without making a . . .
competency determination” under 18 U.S.C. § 4241(e), “[t]his failure does not[]
[automatically] mandate reversal of the conviction,” and that a defendant’s
“substantive rights [are] affected [by such error] only if [the defendant] was
actually incompetent at the time of trial.” Hutson, 821 F.2d at 1018 (citations
omitted).   In this appeal, Humphrey has not even suggested that he was
incompetent at the time he was sentenced, let alone demonstrated as much.
      Accordingly, Humphrey has failed to establish that the district court’s
failure to hold a competency hearing prior to his final sentence warrants
reversal.
II.   Reasonableness of the Final Sentence
      Humphrey also argues that his final sentence was procedurally and
substantive unreasonable.        With respect to procedural reasonableness,
Humphrey argues that the district court: (1) incorrectly calculated the
sentencing range under the U.S. Sentencing Guidelines by improperly imposing
two “recency points” on Humphrey’s criminal history score for committing the

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crimes less than two years after being released from prison, in contravention of
an amendment to the Sentencing Guidelines, in effect at the time the final
sentence, which eliminated the “recency points” provision; and (2) improperly
applied an upward departure from the guidelines range because it failed to
perform the procedure set out in Sentencing Guidelines § 4A1.3(a)(4)(A) by
failing to incrementally move across the sentencing table until it found an
appropriate criminal history category. As noted above, we review Humphrey’s
procedural reasonableness claims for plain error.3
       In doing so, we need not decide whether the district court committed error
in calculating the guidelines range because, even if it did, Humphrey cannot
show that his substantial rights were affected. Even where a district court
miscalculates the guidelines range, the error does not affect the defendant’s
substantial rights unless the defendant can show a reasonable probability that,
but for the district court’s error, he would have received a lower sentence.
United States v. Cantu-Ramirez, 669 F.3d 619, 630 (5th Cir. 2012), cert. denied,
2012 WL 1715991. Though the district court noted that it took into account
Humphrey’s history and characteristics and the need for deterrence and to
protect the public, it emphasized its view that Humphrey’s criminal history
category substantially underrepresented the seriousness of his criminal history



       3
         To preserve a claim for full review on appeal, counsel must raise the issue “in such a
manner so that the district court may correct itself and thus, obviate the need for [this court’s]
review.” United States v. Gutierrez, 635 F.3d 148, 152 (5th Cir. 2011). Here, Humphrey’s
attorney stated that Humphrey should not be assessed two points for having committed the
offense while on parole; counsel made no mention of points assigned for having committed the
offense less than two years after release from prison. Specifically, counsel stated: “The other
new objection is that Mr. Humphrey in paragraph 43 is the calculation of his criminal history.
He received two points because the instant offense was committed while he was still serving
a parole sentence, and it is his position that is not the law anymore.” Humphrey’s counsel did
not articulate an objection to the imposition of the two recency points or the fact that the
pertinent guidelines provision had been deleted. Thus, counsel failed to give the district court
an opportunity to address the claimed error Humphrey now raises on appeal. Nor did counsel
make any objection regarding the district court’s procedure in applying the departure.

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and the likelihood that he would commit future crimes. The district court
imposed the statutory maximum sentences on both felon-in-possession counts,
to run consecutively, despite the fact that this sentence was significantly above
the guidelines range. Moreover, when the district court imposed the first
sentence — before vacating that judgment and imposing the provisional sentence
— the district court likewise imposed a 240-month sentence, despite its apparent
mistaken belief at that time that Humphrey had a lower criminal history score
under the guidelines than he in fact did. For these reasons, Humphrey has not
demonstrated a reasonable probability that the court would have imposed a
more lenient sentence had the guidelines range been lower. See Cantu-Ramirez,
669 F.3d at 630.
      Humphrey also argues that the district court failed to follow the procedure
set out in Sentencing Guidelines § 4A1.3(a)(4)(A) by not incrementally moving
across the sentencing table until it found an appropriate criminal history
category. However, this court has explained that it does not “require the district
court to go through a ritualistic exercise in which it mechanically discusses each
criminal history category it rejects en route to the category that it selects.”
United States v. Lambert, 984 F.2d 658, 662 (5th Cir. 1993) (en banc). Here, the
district court’s statement of reasons for the final sentence indicated that, inter
alia, “[t]he upward departure is based upon the facts that the defendant’s
criminal history category substantially under-represents the seriousness of his
criminal history or the likelihood that he will commit other crimes in the future”
and that “[t]he defendant has a criminal history dating back to when he was 12,
most of the offenses involving weapons.” Moreover, given the district court’s
repeated imposition of an above-guidelines 240-month sentence based on its
assessment that Humphrey’s criminal history category understated his past
criminal conduct and need for deterrence, Humphrey has not “demonstrate[d]
a reasonable probability that his sentence would have been lower” had the

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district court more explicitly set forth its reasons for rejecting possible lower
sentences. See Cantu-Ramirez, 669 F.3d at 630.
      With respect to the substantive reasonableness of the final sentence, the
government concedes that Humphrey preserved his argument below. Thus, we
review for abuse of discretion. Humphrey argues that the district court erred in
concluding that his criminal history category understated his prior criminal
conduct because his juvenile offenses did not warrant an upward variance or
departure. However, this court has previously explained that “[a] defendant’s
criminal history is one of the factors that a court may consider in imposing a
non-Guideline sentence,” and that in making this determination, a district court
may appropriately consider “juvenile adjudications not accounted for by the
Guideline sentence.” United States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006).
Humphrey’s other arguments as to substantive unreasonableness amount to
contentions that the district court should have differently weighed the
sentencing factors or placed less emphasis on certain aspects of Humphrey’s past
misconduct. However, the Supreme Court has explained that “appellate court[s]
. . . must give due deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Gall, 552 U.S. at 51.
“The fact that the appellate court might reasonably have concluded that a
different sentence was appropriate is insufficient to justify reversal of the
district court.” Id. Accordingly, Humphrey has not demonstrated that his
sentence was substantively unreasonable.
                                CONCLUSION
      For the foregoing reasons, we AFFIRM Humphrey’s sentence.




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