     Case: 14-60880      Document: 00513337510         Page: 1    Date Filed: 01/11/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-60880                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                January 11, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

MARK FRANK DAVIS,

              Defendant - Appellant




                  Appeals from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 3:11-CR-63


Before SMITH, WIENER, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant Mark Davis seeks to vacate his guilty plea and sentence
because of mental incompetency.                We AFFIRM the district court’s
determination that Davis was competent to enter into the plea agreement and
DISMISS the remainder of the appeal because Davis entered into an
enforceable waiver of appeal that precludes consideration of the remaining
issues.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-60880    Document: 00513337510      Page: 2    Date Filed: 01/11/2016



                                 No. 14-60880
                   FACTS AND PROCEDURAL HISTORY
      Mark Davis was indicted for crimes related to the possession and
distribution of methylenedioxy-methamphetamine (MDMA) and pled guilty to
one count of conspiracy to possess MDMA with the intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. During the plea hearing, the
district court had an extended discussion with Davis regarding the nature of
the charges against him.       The prosecuting attorney described the plea
agreement, specifically mentioning a provision which waived “the right to
appeal the conviction and sentence or the manner in which that sentence was
imposed under any ground whatsoever.” Davis indicated that he understood
the charges against him, that he knew the difference between right and wrong,
and that he understood the plea agreement. Davis further stated that his plea
was “both knowing and voluntary.” Davis’s counsel was satisfied that Davis
was competent and with Davis’s understanding of the plea agreement. The
court accepted Davis’s plea.
      After the guilty plea, Davis’s counsel requested to withdraw because a
“breakdown    in   communication”    prevented     him     from   reviewing    the
presentencing report with Davis. The district court granted the request and
appointed new counsel. Davis’s new counsel requested a mental evaluation of
Davis based on indications of mental illness which appeared in the
presentencing report. The court requested Davis’s medical records from the
United States Department of Veterans Affairs and granted the motion for
evaluation.
      From June 5 to August 19, 2013, Davis was evaluated by Dr. Judith
Campbell at the Federal Medical Center in Lexington, Kentucky.                 Dr.
Campbell repeatedly interviewed Davis, and he was observed by psychology
staff at the center. Davis was given a thorough medical examination which
included a complete medical history.            Dr. Campbell also reviewed
                                      2
    Case: 14-60880   Document: 00513337510      Page: 3   Date Filed: 01/11/2016



                                No. 14-60880
approximately 1500 pages of Davis’s medical and mental health records,
including those acquired from the VA, as well as the presentencing report. Dr.
Campbell interviewed members of Davis’s family, his friends, and his attorney,
and administered several mental health examinations. The testing indicated
that Davis was highly intelligent. Although Davis continually stated that he
was working for the CIA on a secret government mission, Dr. Campbell
concluded that Davis was competent but malingering, and had done so for
many years in an attempt to receive VA disability benefits and evade
prosecution.
      After receiving Dr. Campbell’s report, Davis requested a second mental
evaluation. The court held a competency hearing on January 23, 2014 where
Dr. Campbell testified. The court was impressed by Dr. Campbell’s evaluation
and conclusions, but granted the motion for a second evaluation.
      Dr. Mark Webb was retained for the second psychiatric evaluation. Dr.
Webb interviewed Davis for approximately two hours, interviewed Davis’s
attorney, and reviewed 50-60 pages of Davis’s mental health history, but did
not conduct any tests. Dr. Webb concluded that Davis was not competent to
stand trial, and at the time of the offense, that Davis was off his medication
and psychotic.
      The district court reviewed these findings at a second competency
hearing, where Dr. Webb testified.        The district court determined, after
“hear[ing] from the experts, read[ing] the reports, stud[ying] the conclusions
and analyz[ing] all that data,” that there was “clear evidence” demonstrating
that Davis was competent. In reaching this conclusion, the court specifically
noted Dr. Webb’s short interview with Davis, and his limited familiarity with
Davis’s background. Specifically, the district court discredited Dr. Webb’s
findings because he “did not administer any kind of written exam and did not
seek to interview anybody and did not put much weight on [Davis’s]
                                      3
    Case: 14-60880    Document: 00513337510     Page: 4   Date Filed: 01/11/2016



                                 No. 14-60880
transactions regarding banking and traveling and spending and keeping
moneys and directing others in the drug trade.”
      Davis’s sentencing hearing occurred on November 4, December 1, and
December 3, 2014. Davis made an ore tenus motion to withdraw his plea
agreement, which the court rejected. Davis requested a downward departure
based on diminished mental capacity. The government also requested a one-
level downward departure for cooperation. The court acknowledged that it had
the power to grant the downward departures, but rejected them, and instead
upwardly departed four levels because of the high purity of the MDMA and
marijuana that Davis trafficked. Davis now appeals.
                                DISCUSSION
      Davis raises three challenges to his conviction and sentence. First, Davis
contends that the district court erred in finding him competent to enter into
the plea agreement and waiver of appeal. Second, Davis asserts that the
appeal waiver is unenforceable. Third, Davis contends that the district court
erred in refusing, during sentencing, to grant a requested downward departure
for mental infirmity. We begin with competency.
                                       I.
      “Whether a defendant ‘suffers from a mental disorder or incapacitating
mental illness is a question of fact reviewed under the clearly erroneous
standard’ but this Court takes a ‘hard look’ at the ultimate competency
finding.” United States v. McKnight, 570 F.3d 641, 648 (5th Cir. 2009) (quoting
Moody v. Johnson, 139 F.3d 477, 482 (5th Cir. 1998)). “It is . . . not our task,
as an appellate court, to relitigate the battle of the experts.” United States v.
Simpson, 645 F.3d 300, 306 (5th Cir. 2011). Instead, we “take a hard look at
the facts to determine whether the district court’s competency finding was
clearly arbitrary or unwarranted.” Id. (internal quotations and citations
omitted).
                                       4
     Case: 14-60880       Document: 00513337510          Page: 5     Date Filed: 01/11/2016



                                       No. 14-60880
       Davis claims that the district court failed to adequately consider his past
history of bizarre behavior and erred by accepting Dr. Campbell’s findings and
conclusion while rejecting the testimony of Dr. Webb. District courts, however,
have the authority to credit the testimony of one expert over another as long
as they do not arbitrarily fail to consider the rejected testimony. Albany Ins.
Co. v. Anh Thi Kieu, 927 F.2d 882, 894 (5th Cir. 1991) (citing Pittman v.
Gilmore, 556 F.2d 1259, 1261 (5th Cir. 1977)).
       As part of her evaluation, Dr. Campbell reviewed 1500 pages of Davis’s
mental health records, studied law enforcement reports, and interviewed
various people who had interacted with Davis over the years. Dr. Campbell
also evaluated and observed Davis over an extended period, during which she
conducted extensive interviews and administered mental examinations. In
contrast, Dr. Webb interviewed Davis for two hours, did not administer any
tests, and reviewed only 50-60 pages of Davis’s mental health records. The
district court noted Dr. Webb’s “very short interview” with Davis compared to
Dr. Campbell’s extensive examination. And, the district court found that Dr.
Webb “wasn’t familiar with some items in [Davis’s] background . . . that he
would have been familiar [with] if he had pursued a thorough investigation of”
Davis’s mental competency. Based on these findings, it is clear that the district
court considered Dr. Webb’s testimony, but found Dr. Campbell’s to be more
credible. The district court committed no reversible error when making this
determination.       Davis was therefore competent to enter into the plea
agreement. 1



       1 Davis further contends that the VA’s determination under 38 U.S.C. § 511 that he
was mentally incompetent and therefore qualified to receive disability benefits precluded the
district court’s finding that Davis was competent to enter into the plea agreement. We
disagree. Davis cites no authority that requires a court, during criminal proceedings, to defer
to agency determinations. Therefore, the district court did not err by finding Davis competent
despite the VA’s administrative determination.
                                              5
    Case: 14-60880    Document: 00513337510     Page: 6   Date Filed: 01/11/2016



                                 No. 14-60880
                                       II.
      Having determined that the district court did not err in finding that
Davis was competent to enter into the plea agreement, we turn to whether the
waiver of appeal is enforceable. Whether a waiver of appeal found in a plea
agreement bars appeal is reviewed de novo. United States v. Jacobs, 635 F.3d
778, 780-81 (5th Cir. 2011) (per curiam). “The right to appeal a conviction and
sentence is a statutory right, not a constitutional one, and a defendant may
waive it as part of a plea agreement.” United States v. Baymon, 312 F.3d 725,
727 (5th Cir. 2002). To be valid, such a waiver must be (1) “knowing and
voluntary,” and (2) the waiver must “appl[y] to the circumstances at hand,
based on the plain language of the agreement.”        Jacobs, 635 F.3d at 781
(quoting United States v. Palmer, 456 F.3d 484, 488 (5th Cir. 2006)).
      There is no dispute that the waiver applies to the circumstances at hand.
Instead, the question is whether the waiver was knowing and voluntary. “For
a waiver of appeal to be knowing and voluntary, [a] defendant must know that
he had a right to appeal his sentence and that he was giving up that right. Id.
(internal quotations and citations omitted). In other words, a defendant must
“understand the consequences of the waiver.” Id. (citing United States v. Baty,
980 F.3d 977, 980 (5th Cir. 1992)).
      Davis knowingly and voluntarily waived the right to appeal his
conviction and sentence. The district court engaged in an extended discussion
with Davis regarding the charges brought against him. Davis stated that he
understood and was bound by the plea agreement. Davis’s counsel believed
Davis to be competent and believed that Davis understood the consequences of
entering the guilty plea. And, although the district court did not itself explain
the waiver to Davis, the prosecuting attorney did, after which Davis said that
he agreed with the government’s description of the waiver.


                                       6
    Case: 14-60880   Document: 00513337510    Page: 7   Date Filed: 01/11/2016



                               No. 14-60880
     There is no doubt that Davis knowingly and voluntarily waived his right
to appeal. Because Davis stated on the record that he understood the terms of
the waiver, and the district court was careful to ensure that Davis knowingly
and voluntarily waived the right to appeal, the waiver is enforceable.
Therefore, we dismiss Davis’s remaining challenges to his conviction and
sentence.
                              CONCLUSION
     The district court’s determination that Davis was competent to enter into
the guilty plea is AFFIRMED and the remainder of the appeal is
DISMISSED because Davis entered into a valid waiver of his right to appeal.




                                     7
