United States v. Brandon DeJuan Ward

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 2, 2019
• Docket: 19-10470
• Status: Unpublished

Opinion

Case: 19-10470 Date Filed: 12/02/2019 Page: 1 of 19

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10470 Non-Argument Calendar ________________________

D.C. Docket No. 2:18-cr-00222-CG-B-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRANDON DEJUAN WARD,

Defendant-Appellant.

________________________

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

(December 2, 2019)

Before WILLIAM PRYOR, ROSENBAUM, and BRANCH, Circuit Judges.

PER CURIAM: Case: 19-10470 Date Filed: 12/02/2019 Page: 2 of 19

Brandon Ward appeals his 120-month sentence after pleading guilty to

possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2). Ward argues that the district court (1) abused its discretion by failing

to order a competency hearing sua sponte; (2) plainly erred by declining to set his

federal sentence to run concurrently with an anticipated state sentence based on

relevant conduct; and (3) erred by omitting from his indictment and plea colloquy

the “knowledge-of-status” element of §§ 922(g)(1) and 924(a)(2), as required by the

Supreme Court’s recent decision in Rehaif v. United States, 588 U.S. ___, 139 S. Ct.

2191 (2019). After careful review, we affirm Ward’s conviction but vacate and

remand for resentencing.

I.

In September 2017, police officers responded to a call at a residence in Selma,

Alabama, in reference to a gunshot victim. The victim told the officers that he had

allowed Ward into his home to use a computer to fill out a job application. But as

the victim cleaned his bathroom, Ward burst in waving a gun and demanding money.

Ward then shot the victim in the left arm and fled the scene in the victim’s vehicle.

The officers recovered a 9mm shell casing and two live 9mm rounds at the scene.

Later, the officers discovered the victim’s vehicle in a neighboring county and found

a Hi-Point 9mm pistol and a large-capacity magazine in the center console. After

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his arrest in December 2017, Ward was charged by state authorities with attempted

murder and first-degree burglary.

In July 2018, a federal grand jury indicted Ward on one count of illegal

possession of a firearm by a convicted felon. See 18 U.S.C. §§ 922(g)(1) &

924(a)(2). The indictment alleged that he had been convicted of the felonies of

Burglary First Degree and Receiving Stolen Property First Degree in 2004, and of

Discharging a Firearm into an Occupied Building in 2017. In an open plea to the

indictment, without a plea agreement, Ward pled guilty to the federal offense in

September 2018.

At the change-of-plea hearing, Ward stated that he had seen a psychologist in

2016 at Bibb County Correctional Facility who told him to get evaluated, but he did

not do so. Ward advised the court that he was pleading guilty because he was in fact

guilty and that he understood the consequences of his plea. When asked whether the

government had offered Ward a plea agreement, Ward’s counsel told the court that

Ward had declined the government’s plea offer after “discuss[ing] it fully” with

counsel. The court explained that, in order to convict Ward, the government would

have to show that he knowingly possessed the firearm, it had traveled in interstate

or foreign commerce, and he had been convicted of a felony before possessing the

firearm. Ward stated that he understood these elements and that the government

could prove that he possessed a firearm because “[t]hey have it on camera.” At the

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conclusion of the hearing, the court found that Ward was “fully competent and

capable of entering an informed plea” and accepted his guilty plea.

The probation office prepared Ward’s presentence investigation report

(“PSR”) and calculated his recommended guideline range. While the offense level

for firearm possession offenses typically is calculated under U.S.S.G. § 2K2.1, the

PSR set a base offense level of 27 using U.S.S.G. § 2A2.1, the guideline for “Assault

with Intent to Commit Murder; Attempted Murder,” after applying the “cross

reference” at U.S.S.G. § 2K2.1(c)(1)(A). The cross reference states that, if the

defendant used or possessed the firearm in connection with another offense, the court

should apply the guideline applicable to that other offense if it results in a higher

offense level. After applying a two-level increase for bodily injury and a three-level

reduction for acceptance of responsibility, the PSR calculated a total offense level

of 26. The PSR then outlined Ward’s criminal history, including the three felony

convictions referenced in the indictment, and determined a criminal-history category

of VI. Together, the total offense level and criminal-history category established a

recommended guideline imprisonment range of 120 to 150 months, which was then

reduced to the statutory maximum of 120 months.

The PSR also discussed Ward’s mental and emotional health. According to

the PSR, Ward was being treated for depression at a county jail, and psychiatric

records showed that he had been diagnosed with schizoaffective disorder-bipolar

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type on October 25, 2018, but he had not been prescribed medication for this

condition. Ward also reported receiving mental-health treatment as a teenager.

Ward submitted a sentencing memorandum detailing that he received mental-

health treatment as a young child after hearing voices, became suicidal after his

parents died, and stopped receiving treatment when he went to live with his sister.

It also stated that he had been prescribed Zoloft for depression as a teenager but had

stopped taking it. More recently, the memorandum stated, he attempted suicide in

October 2018 and was taken to a hospital for “crisis intervention.” Ward reported

hearing voices telling him to hurt himself and experienced “poor sleep, depression,

irritability, anxious mood, difficulty concentrating, and rambling thoughts.”

At sentencing, Ward’s counsel withdrew Ward’s sole objection to the PSR,

stating that she had discussed the matter with Ward. The district court adopted the

PSR’s guideline range and then, after stating that it had reviewed Ward’s sentencing

memorandum, invited the parties’ views on an appropriate sentence. Contending

that a downward variance was appropriate, Ward’s counsel asserted that the “system

has failed [Ward] consistently over and over” and that he needed mental health

treatment. Counsel also asked the court “to consider . . . a concurrent sentence with

whatever state sentence he may receive, because those state charges are still

pending” and a trial date was set. When the court asked Ward if he had “anything

[he’d] like to say,” Ward responded that he took full responsibility for his actions.

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The district court imposed a sentence of 120 months of imprisonment with a

recommendation for an institution with a mental-health treatment program. The

court declined to run the sentence concurrent “with whatever [he] may get in the

pending state charges, because those are different charges.” While acknowledging

that the “attempted murder and the burglary first degree arose out of this same

incident,” the court emphasized they were “definitely different charges.” At the

conclusion of sentencing, Ward objected “to the [c]ourt’s declining to run [the

sentence] concurrent with the state sentence.” Ward now appeals.

While this appeal was pending, the Supreme Court decided Rehaif, which held

that, “in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the [g]overnment

must prove both that the defendant knew he possessed a firearm and that he knew

he belonged to the relevant category of persons barred from possessing a firearm.”

139 S. Ct. at 2200. Previously, in this Circuit, the government was not required to

prove a defendant’s knowledge of his status as a convicted felon. Id. at 2194–95.

After Rehaif was decided, we permitted the parties to file supplemental briefs

addressing its effect on this case.

II.

Ward first contends that the district court should have ordered a competency

hearing in light of evidence that he was not competent to plead guilty and be

sentenced. We review for an abuse of discretion a district court’s failure to conduct

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a competency hearing sua sponte. United States v. Wingo, 789 F.3d 1226, 1236

(11th Cir. 2015).

The Due Process Clause of the Fifth Amendment requires that a defendant be

mentally competent to be tried or convicted. United States v. Rodriguez, 751 F.3d

1244, 1252 (11th Cir. 2014). The standard of competence is “whether the defendant

has 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.” Id. (quotation marks omitted). “Evidence of

incompetence must indicate a present inability to assist counsel or understand the

charges.” Pardo v. Sec’y, Fla. Dep’t of Corr., 587 F.3d 1093, 1101 (11th Cir. 2009)

(quotation marks omitted). For that reason, “an allegation of mental illness or other

mental disability does not invalidate a guilty plea if the defendant was still competent

to enter that plea.” Rodriguez, 741 F.3d at 1252; Pardo, 587 F.3d at 1101 (absent

evidence of an inability to assist counsel or understand the charges, “evidence of low

intelligence, mental deficiency, bizarre, volatile, or irrational behavior, or the use of

anti-psychotic drugs is not sufficient to show incompetence to stand trial”).

Under 18 U.S.C. § 4241, it’s the court’s “obligation to sua sponte hold a

hearing if it has ‘reasonable cause’ to believe that the defendant ‘may’ be

incompetent.” Wingo, 789 F.3d at 1236 (quoting Tiller v. Esposito, 911 F.2d 575,

576 (11th Cir. 1990)). The “reasonable cause” standard is satisfied if the court has

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“a bona fide doubt regarding the defendant’s competence.” Id. Courts should

consider three factors in determining whether there is such a bona fide doubt:

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

court; and (3) prior medical opinions regarding the defendant’s competence. Id. The

court must “consider the aggregate of evidence pertaining to all three prongs,”

though evidence under a single prong may sometimes be enough to establish a bona

fide doubt. Id. In addition, “counsel’s failure to raise the competency issue can be

persuasive evidence that competency is not in doubt.” Id. at 1238.

In Ward’s view, two pieces of evidence created reasonable cause to believe

that he was not competent to plead guilty and be sentenced. First, at the plea hearing,

the district court heard that Ward had been advised by a psychologist “to get

evaluated” but asked no follow up questions. Then, just before sentencing, the court

learned that Ward had been diagnosed with a serious mental disorder after he

attempted suicide in jail and reported auditory hallucinations.

Applying the three factors, on this record, we cannot say that the district court

abused its discretion by failing to order a competency hearing sua sponte. True, the

record shows that Ward had a history of mental illness, that he suffered auditory

hallucinations and may have tried to commit suicide after pleading guilty, and that

he was then diagnosed with schizoaffective disorder-bipolar type. But there are no

prior medical opinions regarding Ward’s competence, and his demeanor at the

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change-of-plea hearing and sentencing indicates that he had a rational and factual

understanding of the proceedings against him and was able to assist counsel. See

Rodriguez, 751 F.3d at 1252; Pardo, 587 F.3d at 1101. Plus, Ward’s counsel

expressed no concerns regarding Ward’s competency.

At the change-of-plea hearing, Ward was responsive to the court’s questions,

and his answers indicated that he understood the elements of his offense, the

evidence that the government could use to prove those elements, and the

consequences of pleading guilty. The district court was able to observe Ward’s

demeanor and concluded that he was “fully competent and capable of entering an

informed plea.” Additionally, his counsel’s statement that she and Ward had fully

discussed the plea agreement indicated that he was able to consult with his lawyer.

Then, at sentencing, the district judge again had an opportunity to observe

Ward’s demeanor. Although by that time Ward had attempted suicide and received

a diagnosis, neither Ward nor his counsel indicated that these events rendered him

incompetent to proceed with sentencing, which is “persuasive evidence that

competency is not in doubt.” Wingo, 789 F.3d at 1238. Ward’s participation at

sentencing was limited, but his counsel indicated that she had discussed a sentencing

objection with Ward before deciding to withdraw it, and Ward advised the court that

he took full responsibility for his actions.

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Overall, the defendant’s exchanges with the trial judge, while limited in scope,

reveal that Ward was able to respond clearly and properly to the court’s questions,

and Ward’s and his counsel’s statements demonstrate that he understood the nature

of the proceedings against him and was able to assist counsel.

On this record, we cannot say that the evidence Ward points to created

“‘reasonable cause’ [for the court] to believe that the defendant ‘may’ be

incompetent.” Wingo, 789 F.3d at 1236. Ward’s statement at the plea hearing that

a psychologist had told him to “get evaluated” several years earlier did not bear on

his present understanding of the proceedings or ability to consult with his lawyer.

See Rodriguez, 741 F.3d at 1252. And while he was treated for depression and

diagnosed with schizoaffective disorder-bipolar type before the sentencing hearing,

there was no evidence that these conditions affected his competency, despite some

evidence of irrational behavior outside of court. See id.; Pardo, 587 F.3d at 1101.

In short, on this record, we conclude the district court did not abuse its discretion by

failing to hold a competency hearing sua sponte.

III.

Ward next argues that the district court procedurally erred by failing to apply

or even acknowledge U.S.S.G. § 5G1.3(c), which, in Ward’s view, directed that his

sentence run fully concurrent with his anticipated state sentence.

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To preserve an issue for review, “one must raise an objection that is sufficient

to apprise the trial court and the opposing party of the particular grounds upon which

appellate relief will later be sought. A general objection or an objection on other

grounds will not suffice.” United States v. Dennis, 786 F.2d 1029, 1042 (11th Cir.

1986). Although Ward objected generally to the decision to run his federal sentence

consecutive to the anticipated state sentence, he did not bring to the court’s attention

§ 5G1.3 specifically. Because he did not raise “the particular grounds upon which

appellate relief” is now sought, we review for plain error only. Id.

“The plain-error test has four prongs: there must be (1) an error (2) that is

plain and (3) that has affected the defendant’s substantial rights; and if the first three

prongs are met, then a court may exercise its discretion to correct the error if (4) the

error seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” United States v. Madden, 733 F.3d 1314, 1320 (11th Cir. 2013)

(quotation marks omitted). To demonstrate that an error affected his substantial

rights, a defendant “must show a reasonable probability that, but for the error, the

outcome of the proceeding would have been different.” Molina-Martinez v. United

States, 578 U.S. ___, ___, 136 S. Ct. 1338, 1343 (2016) (quotation marks omitted).

Section 5G1.3 provides guidance for sentencing a defendant who is subject to

an undischarged term of imprisonment or an anticipated state term of imprisonment.

As relevant here, subsection (c) advises courts that a federal sentence “shall be

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imposed to run concurrently” with an anticipated, but not yet imposed, state sentence

resulting from an offense that is “relevant conduct to the instant federal offense.”

U.S.S.G. § 5G1.3(c). “Relevant conduct” includes “all acts and omissions

committed . . . by the defendant . . . that occurred during the commission of the

offense of conviction[] [or] in preparation for that offense.” U.S.S.G.

§ 1B1.3(a)(1)(A). It is used to determine “(i) the base offense level where the

guideline specifies more than one base offense level, (ii) specific offense

characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in

Chapter Three.” U.S.S.G. § 1B1.3(a).

We have observed that “[s]ections 5G1.3 and 1B1.3 interact to protect a

criminal defendant from duplicative prosecutions.” United States v. Bidwell, 393

F.3d 1206, 1210 (11th Cir. 2004). Through these provisions, the guidelines “seek to

provide one, uniform punishment for the same criminal activity.” Id. (quotation

marks omitted).

Section 5G1.3(c) applies in this case. A “state term of imprisonment [was]

anticipated to result” from the pending state charges,1 and the state charges—or, at

the very least, the attempted-murder charge—were “relevant conduct to the instant

1 The government vaguely suggests that a state sentence must be “imminent” for § 5G1.3(c) to apply, but it points to no supporting authority. And we find that it is enough that the state charges were set for trial at the time of sentencing. See United States v. Olmeda, 894 F.3d 89, 93 (2d Cir. 2018) (“It follows that an ‘anticipated’ state sentence must, at minimum, encompass sentences associated with state charges for relevant conduct that are pending at the time of a defendant’s federal sentencing.”). 12 Case: 19-10470 Date Filed: 12/02/2019 Page: 13 of 19

federal offense.” U.S.S.G. § 5G1.3(c). Indeed, the district court calculated Ward’s

offense level under the guideline for “Assault with Intent to Commit Murder;

Attempted Murder,” U.S.S.G. § 2A2.1, after applying the cross reference at

U.S.S.G. § 2K2.1(c)(1)(A), based on his conduct of shooting the victim with a

firearm. See U.S.S.G. § 1B1.3(a). Accordingly, § 5G1.3(c) directed that the federal

sentence “shall be imposed to run concurrently to the anticipated term of

imprisonment.” U.S.S.G. § 5G1.3(c).

Of course, as the government points out, because the guidelines are advisory,

a district court is not required to impose a concurrent sentence, even if § 5G1.3(c)

applies. See 18 U.S.C. § 3584(a); Setser v. United States, 566 U.S. 231, 236–37

(2012) (stating that it was “within the District Court’s discretion to order that [the

defendant’s] sentence run consecutively to his anticipated state sentence.”). Despite

its mandatory language, § 5G1.3(c) is merely a recommendation, and courts may

disagree with a guideline recommendation. See Kimbrough v. United States, 552

U.S. 85, 91, 101 (2007) (holding that sentencing guidelines are “advisory only” and

that courts may disagree with them).

But district courts still must correctly calculate the guideline range and

consider what the guidelines recommend. See Molina-Martinez, 136 S. Ct. at 1342

(“Although the district court has discretion to depart from the Guidelines, the court

must consult those Guidelines and take them into account when sentencing.”

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(quotation marks omitted)); Peugh v. United States, 569 U.S. 530, 537 (2013)

(“Failure to calculate the correct Guidelines range constitutes procedural

error . . . .”). “For that reason, courts must correctly determine whether the

Guidelines recommend concurrent sentences.” United States v. Nania, 724 F.3d

824, 830 (7th Cir. 2013) (collecting cases). “Failure to do so results in procedural

error.” Id.

Here, Ward has established plain error. Ward has shown that the district court

procedurally erred by failing to determine that, under the plain terms of § 5G1.3(c),

the guidelines recommended a concurrent federal sentence in order to ensure that he

received “one, uniform punishment for the same criminal activity.” Bidwell, 393

F.3d at 1210; see United States v. Kieffer, 681 F.3d 1143, 1167–68 (10th Cir. 2012)

(“[A] proper calculation of Defendant’s guideline range required [the court] to

account for U.S.S.G. § 5G1.3(b).”). The court neither referenced § 5G1.3 nor

accounted for this policy. The court simply observed that the state offenses were for

“different charges,” which plays no role in the guidelines’ framework. To the extent

the court meant that the state offenses did not constitute relevant conduct, that was

clearly erroneous and inconsistent with its own guideline calculations. Accordingly,

we conclude that the district court procedurally erred and that this error was plain.

In addition, the district court’s error affected Ward’s substantial rights. The

difference between the concurrent sentence recommended by § 5G1.3(c) and the

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consecutive sentence imposed by the court was substantial. Nor can we tell what

the district court might have done had it properly considered § 5G1.3(c). And where

“the record is silent as to what the district court might have done had it considered

the correct Guidelines range, the court’s reliance on an incorrect range in most

instances will suffice to show an effect on the defendant’s substantial rights.”

Molina-Martinez, 136 S. Ct. at 1347. Because there are no “unusual circumstances”

in this case, it suffices here. See id.

Finally, the fourth prong of plain error is usually met if an error affects a

defendant’s substantial rights. Rosales-Mireles v. United States, 585 U.S. ___, ___,

138 S. Ct. 1897, 1911 (2018). Here, there is a reasonable possibility that Ward will

spend more time in prison than the district court otherwise might have considered

necessary had it accounted for § 5G1.3(c), and there are no “countervailing factors”

showing “that the fairness, integrity, and public reputation of the proceedings will

be preserved absent correction.” See id. at 1909. So we conclude that the error

seriously affects the fairness, integrity, and public reputation of judicial proceedings.

Accordingly, we vacate Ward’s sentence and remand for resentencing for the court

to consider § 5G1.3(c).

IV.

In a supplemental brief, Ward contends that his conviction should be vacated

because, in light of Rehaif, his indictment and plea colloquy failed to state an

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essential element of an offense under §§ 922(g)(1) and 924(a)(2). He states that

Rehaif established that a defendant’s knowledge of his status as a convicted felon is

an element of the offense, so the omission of this critical element from his indictment

and plea colloquy was plain error.

To the extent Ward challenges the indictment as defective, he waived that

challenge by pleading guilty. Although “[a]n indictment must set forth the essential

elements of the offense,” United States v. Martinez, 800 F.3d 1293, 1295 (11th Cir.

2015), a guilty plea waives all non-jurisdictional defects that occurred before the

entry of the plea, including an omission of a mens rea element from an indictment,

United States v. Brown, 752 F.3d 1344, 1347, 1351, 1354 (11th Cir. 2014).

As to Ward’s challenge to his guilty plea based on Rehaif, we review this

newly raised claim for plain error. See United States v. Rahim, 431 F.3d 753, 756

(11th Cir. 2005) (questions of statutory interpretation raised for the first time on

appeal are reviewed for plain error). Both parties agree that Ward has met the first

two prongs of plain-error review by showing an error that was clear or obvious. See

Henderson v. United States, 568 U.S. 266, 273 (2013) (explaining that the first two

elements of plain error are met if an error becomes clear while the case is on appeal).

In particular, the Supreme Court in Rehaif recently reversed this Circuit’s precedent

and held that in a prosecution under §§ 922(g)(1) and 924(a)(2), “the [g]overnment

must prove both that the defendant knew he possessed a firearm and that he knew

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he belonged to the relevant category of persons barred from possessing a firearm.”

Rehaif, 139 S. Ct. at 2200. Because the plea colloquy did not establish that Ward

knew he had been convicted of “a crime punishable by imprisonment for a term

exceeding one year,” 18 U.S.C. § 922(g)(1), the error was plain under Rehaif.

As to the third prong of plain-error review, Ward acknowledges that, to

establish that his substantial rights were affected, he must show a reasonable

probability that he “would not have pled guilty had the government been required to

prove his knowledge of status.” Ward’s Supp. Brief at 9; see United States v.

Dominguez Benitez, 542 U.S. 74, 83 (2004) (“[A] defendant who seeks reversal of

his conviction after a guilty plea, on the ground that the district court committed

plain error under Rule 11, must show a reasonable probability that, but for the error,

he would not have entered the plea.”). Because the plain-error doctrine is intended

to “correct only particularly egregious errors,” United States v. Young, 470 U.S. 1,

15 (1985), we “may consult the whole record when considering the effect of any

error on substantial rights,” United States v. Vonn, 535 U.S. 55, 59 (2002).

Here, Ward has not shown that the error affected his substantial rights.

According to undisputed facts in the PSR, Ward had been convicted of five felony

convictions in a Florida court when he possessed the firearm in this case, and four

of these convictions resulted in sentences of either ten or fifteen years of

imprisonment. Ward points out that the vast majority of this time was suspended in

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favor of probation, citing an observation in Rehaif that “a person who was convicted

of a prior crime but sentenced only to probation” may not know that the crime is

“punishable by imprisonment for a term exceeding one year.” Rehaif, 139 S. Ct. at

2198. But Ward was not sentenced “only to probation,” and, in any event, his

probation was revoked in May 2008, and he remained in prison for nearly eight years

until his release in May 2016. The fact that Ward received multiple sentences of

more than one year of imprisonment for serious felonies—and in fact served nearly

eight years in prison—indicates that he knew that his prior offenses were punishable

by more than one year of imprisonment.

Ward contends that our review must be limited solely to the convictions

alleged in the indictment. But even if we assume for purposes of this appeal that

Ward is correct in this regard, he still cannot show a reasonable probability of a

different result. With respect to his 2004 convictions for First Degree Burglary and

First Degree Receiving Stolen Property, which were alleged in the indictment, the

PSR reflects that Ward served 18 months of his 10-year sentence before the

remainder of his sentence was suspended. So to the extent Ward could reasonably

claim ignorance as to the particular grounds for his revocation sentence, he still

served more than one year of imprisonment on the 2004 convictions before

beginning probation. Accordingly, even if we limit our review to the convictions

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alleged in the indictment, we still cannot say that Ward may not have been aware

that he was a convicted felon.

Because the record indicates that Ward was aware of his status as a convicted

felon at the time of his possession of a firearm, there is no reason to believe that he

would have continued to trial absent the district court’s error in not informing him

that the government was required to prove “that he knew he belonged to the relevant

category of persons barred from possessing a firearm.” Rehaif, 139 S. Ct. at 2200.

For these reasons, we affirm as to this issue.

V.

In sum, we affirm Ward’s conviction for possession of a firearm by a

convicted felon. We vacate and remand for resentencing consistent with this

opinion.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.