United States v. Jeffery Charles Nicoll, Jr.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 14, 2010
No. 09-16330
JOHN LEY
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 09-00347-CR-T-26-TBM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEFFERY CHARLES NICOLL, JR.,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(October 14, 2010)

Before DUBINA, Chief Judge, EDMONDSON and ANDERSON, Circuit Judges.

PER CURIAM:

Appellant Jeffery Charles Nicoll, Jr., appeals his convictions and 180-month
total sentence for two counts of possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g), and one count of possession of an unregistered

short-barreled shotgun, in violation of 26 U.S.C. §§ 5861(d) and 5871. On appeal,

Nicoll argues that: (1) the district court committed reversible error when it failed

to conduct a hearing sua sponte on the issue of his competency to enter a guilty

plea; and (2) the district court plainly erred in convicting him under § 922(g)

because the statute violates the Commerce Clause, in light of the Supreme Court’s

holding in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d

626 (1995), and the Second Amendment, in light of the Supreme Court’s decisions

in District of Columbia v. Heller, 554 U.S. ___, 128 S. Ct. 2783, 171 L. Ed. 2d

637 (2008) and McDonald v. Chicago, 561 U.S.___, 130 S. Ct. 3020, 177 L. Ed.

2d 894 (2010). Nicoll further argues that, in sentencing him, the district court

erred by: (1) applying a four-level enhancement to his base offense level, pursuant

to U.S.S.G. § 2K2.1(b)(6), for having a firearm in connection with another felony

offense; (2) permitting an individual whose wife was killed in a car crash caused

by Nicoll to make a statement during his sentencing hearing; and (3) imposing an

above-guideline sentence that was procedurally and substantively unreasonable.

I. FAILURE TO CONDUCT A COMPETENCY HEARING SUA SPONTE

Nicoll first argues that the district court erred in failing to conduct a

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competency hearing sua sponte. We review a district court’s failure to order a

competency hearing sua sponte for an abuse of discretion. See United States v.

Williams, 468 F.2d 819, 820 (5th Cir. 1972).1

A district court shall order a hearing sua sponte “if there is reasonable cause

to believe that a 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). We have held that a trial court

must conduct a competency hearing sua sponte when it has a bona fide doubt

regarding the defendant’s competence. Tiller v. Esposito, 911 F.2d 575, 576 (11th

Cir. 1990). “The legal test for competency is whether the defendant had sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding and whether he had a rational as well as factual understanding of

the proceedings against him.” United States v. Nickels, 324 F.3d 1250, 1252 (11th

Cir. 2003) (quotations omitted). We consider

three factors in determining whether the trial court violated the
defendant’s procedural due process rights by failing to hold sua
sponte a competency hearing: (1) evidence of the defendant’s

1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court
adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of
business on September 30, 1981.

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 irrational behavior; (2) the defendant’s demeanor at trial [or during
the plea hearing]; and (3) prior medical opinion regarding the
defendant’s competence to stand trial [or enter a plea].

Tiller, 911 F.2d at 576. We “focus[] on what the trial court did in light of what it

knew at the time of the trial or plea hearing.” Id. “Because legal competency is

primarily a function of defendant’s role in assisting counsel in conducting the

defense, the defendant’s attorney is in the best position to determine whether the

defendant’s competency is suspect.” Watts v. Singletary, 87 F.3d 1282, 1288

(11th Cir. 1996).

Applying these standards to the facts of the present case, we conclude that

the district court did not abuse its discretion in failing to hold a hearing sua sponte

to determine whether Nicoll was competent to plead guilty. There is no evidence

in the record that Nicoll behaved irrationally at the plea hearing. He

unequivocally answered every question the district court asked and he never

expressed any confusion with the proceeding. Moreover, Nicoll informed the

district court that he had received a general equivalency diploma, had taken

additional classes since receiving his diploma, and read, wrote and understood the

English language. Although Nicoll informed the district court that he had been

diagnosed and received treatment for bipolar disorder and depression, he also

informed the court that he last received treatment three years prior and was no

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longer taking medication. After learning of Nicoll’s past diagnoses, the court

received assurances from Nicoll that he was of a clear mind, was thinking

appropriately, was not under the influence of any substances, and understood the

plea proceeding and its significance. Further, Nicoll’s attorney, who was in the

best position to determine whether a question existed concerning Nicoll’s

competency, declined to make any further inquiries at the end of Nicoll’s plea

colloquy. See Watts, 87 F.3d at 1288

Nicoll argues that the district court should have sua sponte ordered a

competency hearing based on a mental health report that he filed after his guilty

plea was accepted in relation to sentencing. However, it is well-established that,

in determining whether a district court should have ordered a competency hearing,

we focus on what the district court knew at the time of the plea hearing. See

Tiller, 911 F.2d at 576. Because the mental health report was not available at the

time of the plea hearing, it is not relevant to our determination.2 We conclude that

there was not reasonable cause to believe that Nicoll was unable to understand the

nature and consequences of the proceeding or to assist in his defense.

2
We note that, even if the mental health report is considered, the report in no way
indicated that Nicoll did not have a reasonable degree of rational understanding of the
proceedings against him. Instead, the report discussed the role that his mental health and
substance abuse issues played in the charged offense.

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Accordingly, we hold that the district court did not abuse its discretion in failing to

order sua sponte a competency hearing.

II. CONSTITUTIONALITY OF 18 U.S.C. § 922(g)(1)

Nicoll’s next argument is that the statute under which he was convicted—18

U.S.C. § 922(g)(1)—is unconstitutional under both the Commerce Clause and the

Second Amendment. Where, as here, a defendant challenges the constitutionality

of a statute under which he was convicted for the first time on appeal, we will

review the claim for plain error only. United States v. Peters, 403 F.3d 1263, 1270

(11th Cir. 2005). Under plain error review, we “may not correct an error the

defendant failed to raise in the district court unless there is: (1) error, (2) that is

plain, and (3) that affects substantial rights.” Id. at 1271 (quotations omitted).

Even then, we will rectify the error only if it “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (quotation omitted).

Here, because Nicoll did not object to the constitutionality of § 922(g)(1) before

the district court, we review his claims challenging the statute as unconstitutional

on its face for plain error. See id.

“The law of this circuit is ‘emphatic’ that only the Supreme Court or this

court sitting en banc can judicially overrule a prior panel decision.” Cargill v.

Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997) (citing United States v. Woodard,

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938 F.2d 1255, 1258 (11th Cir. 1991)). We have repeatedly upheld the

constitutionality of § 922(g) against Commerce Clause challenges. E.g., United

States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996); United States v. Wright,

392 F.3d 1269, 1280 (11th Cir. 2004) (listing cases in which we have upheld the

constitutional validity of § 922(g)). In McAllister, we rejected a constitutional

challenge identical to Nicoll’s argument—that based on the Supreme Court’s

decision in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d

626 (1995), § 922(g) exceeds Congress’s Commerce Clause power because it does

not require a substantial effect on interstate commerce. 77 F.3d at 389-90. Based

on these precedents, we reject Nicoll’s Commerce Clause argument.

Nicoll also argues that § 922(g) is unconstitutional under the Second

Amendment. In District of Columbia v. Heller, 554 U.S. ___, 128 S. Ct. 2783,

171 L. Ed. 2d 637 (2008), the Supreme Court held that the District of Columbia’s

ban on handgun possession in the home by law-abiding citizens violated the

Second Amendment. 554 U.S. at ___, 128 S. Ct. at 2821. The Court in Heller,

however, qualified that the right to bear arms,“[l]ike most rights, . . . is not

unlimited.” Id. at ___, 128 S. Ct. at 2816. The Court further stated that “nothing

in [Heller] should be taken to cast doubt on longstanding prohibitions on the

possession of firearms by felons . . . .” Id. at ___, 128 S. Ct. at 2816-17. After

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Heller, we held that § 922(g)(1) is a “constitutional avenue to restrict the Second

Amendment right of” convicted felons. United States v. Rozier, 598 F.3d 768, 771

(11th Cir.), cert. denied, 130 S. Ct. 3399 (2010). Noting that the Heller Court

specifically disclaimed any erosion of the “longstanding prohibitions on the

possession of firearms by felons,” we held that “statutes disqualifying felons from

possessing a firearm under any and all circumstances do not offend the Second

Amendment.” Id. (quotation omitted). Recently, in McDonald v. Chicago, 561

U.S.___, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010), the Supreme Court held that

the holding in Heller “did not cast doubt on such longstanding regulatory

measures as prohibitions on the possession of firearms by felons [and] . . . [w]e

repeat those assurances here.” 561 U.S. at ___, 130 S. Ct. at ___, 177 L. Ed. 2d at

926 (quotation omitted). Based on these precedents, we reject Nicoll’s argument

that § 922(g) violates the Second Amendment.

III. SENTENCING CLAIMS

A. U.S.S.G. § 2K2.1(b)(6)

Nicoll next argues that the district court erred in applying a four-level

enhancement to his base offense level, pursuant to U.S.S.G. § 2K2.1(b)(6), for

having a firearm in connection with another felony offense. We review a district

court’s application and interpretation of the Guidelines de novo, and its factual

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findings for clear error. United States v. Rhind, 289 F.3d 690, 693 (11th Cir.

2002). The district court’s determination that the defendant used a firearm in

connection with another felony offense is a factual finding reviewed for clear

error. United States v. Whitfield, 50 F.3d 947, 949, n.8 (11th Cir. 1995). “The

burden of establishing evidence of the facts necessary to support a sentencing

enhancement falls on the government, and it must do so by a preponderance of the

evidence.” United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007).

In calculating the guideline range for a firearm possession offense under 18

U.S.C. § 922(g), a four-level increase to the base offense level is required “[i]f the

defendant used or possessed any firearm or ammunition in connection with

another felony offense.” U.S.S.G. § 2K2.1(b)(6). The commentary to this

guideline indicates that the four-level increase may be added to a defendant’s

offense level even if he is not charged or convicted for the other felony offense.

Id., comment. (n.14(C)). Furthermore, the commentary specifically notes that the

enhancement should apply “in the case of a drug trafficking offense in which a

firearm is found in close proximity to drugs, drug-manufacturing materials, or

drug paraphernalia.” Id. at (n. 14(B)).

Effective November 1, 2006, the Guidelines were amended to clarify that

“[s]ubsection (b)(6) appl[ies] if the firearm or ammunition facilitated, or had the

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potential of facilitating, another felony offense . . . .” Id. at (n.14(A)); U.S.S.G.,

App. C, amend. 691 (emphasis added). Before this amendment to the guidelines

commentary, the phrase “in connection with,” as used in § 2K2.1(b)(6), was not

defined by the Sentencing Guidelines, and we held that the phrase should be

expansively interpreted according to its ordinary meaning. See Rhind, 289 F.3d at

695. Thus, according to its ordinary meaning, the phrase “in connection with”

does not require proof that the firearm actually facilitated the other felony offense.

Id.

We have recognized that, “in certain circumstances, mere possession of a

firearm can be enough to apply a sentencing enhancement.” United States v.

Jackson, 276 F.3d 1231, 1234-35 (11th Cir. 2001). “For instance, where it is

reasonable to assume that a defendant possesses a firearm, even without using it,

to prevent the theft of counterfeit currency in his possession, an enhancement is

properly applied.” Id. at 1234. We have also held that a defendant possessed a

firearm in connection with drug offenses where he possessed both the gun and the

narcotics on his person at the same time, because it makes sense to conclude that

the firearm “potentially emboldened [the defendant] to undertake illicit drug

sales.” United States v. Gainey, 111 F.3d 834, 837 (11th Cir. 1997). Additionally,

we have held that a firearm that was not on a defendant’s person can still be

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possessed in connection with a felony offense if the gun could have been easily

retrieved. United States v. Flennory, 145 F.3d 1264, 1270 (11th Cir. 1998)

(holding that a defendant possessed a firearm in connection with a crime when the

firearm was kept in a car across the street from where the defendant was selling

drugs), superceded by regulation on other grounds, as stated in United States v.

Brown, 332 F.3d 1341 (11th Cir. 2003).

We conclude that the district court in this case did not clearly err in

applying a four-level enhancement to Nicoll’s base offense level, pursuant to

U.S.S.G. § 2K2.1(b)(6). First, the government proved by a preponderance of the

evidence that Nicoll either manufactured marijuana or knowingly maintained a

residence where marijuana was manufactured. The pre-sentence investigation

report stated that forty marijuana plants were found in the residence in which

Nicoll lived. Although Nicoll claimed that the marijuana plants were not his but

instead belonged to another individual to whom he rented a room, the district court

concluded that the evidence presented—including a letter written by Nicoll to an

acquaintance in which he implies that the marijuana plants seized by the police

belonged to Nicoll—proved by a preponderance of the evidence that Nicoll

manufactured marijuana. Further, even if the evidence was insufficient to show

that Nicoll himself was manufacturing marijuana, a preponderance of the evidence

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demonstrated that he knowingly maintained a house where marijuana was

manufactured, which is in itself a felony. 21 U.S.C. § 856(a)(1).

Likewise, the district court did not clearly err in concluding that Nicoll’s

possession of a sawed-off shotgun was “in connection with” the marijuana

manufacturing. The evidence showed that Nicoll admitted to possessing the

sawed-off shotgun in the same residence where the marijuana plants were being

grown. Nicoll’s possession of the illegal shotgun in close proximity to the

marijuana is sufficient to satisfy the “in connection with” requirement of §

2K2.1(b)(6). Because Nicoll’s firearm possession had the potential to facilitate

another felony offense and was in close proximity to drugs, we conclude that the

district court did not clearly err in applying the § 2K2.1(b)(6) four-level

enhancement.

B. STATEMENT DURING SENTENCING HEARING

Nicoll next argues that the district court erred in permitting an individual

whose wife was killed in a car crash caused by Nicoll to make a statement during

his sentencing hearing.3 We review de novo “whether a factor considered by the

3
Nicoll was involved in a fatal accident on June 27, 2009. The accident occurred after
Nicoll failed to slow his car after traffic had slowed as a result of another crash. A passenger in
one of the cars that Nicoll hit was killed and her husband, Mr. Edwards, and their two children
were injured. After the police arrived on the scene, they searched Nicoll’s vehicle and found a
safe located in his trunk containing two firearms, ammunition, and a relatively large quantity of
prescription medication. At the sentencing hearing in this case, the district court heard the

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district court in sentencing a defendant is impermissible.” United States v.

Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008).

Under U.S.S.G. § 1B1.3, a district court may only consider “relevant

conduct” for purposes of determining (1) the base offense level, (2) specific

offense characteristics, and (3) adjustments in Chapter Three. U.S.S.G. § 1B1.3

(defining relevant conduct as including “all acts and omissions committed . . . or

willfully caused by the defendant . . . that occurred during the commission of the

offense of conviction”). Regarding the factors that may be considered in

fashioning a reasonable sentence, however, 18 U.S.C. § 3661 provides that “[n]o

limitation shall be placed on the information concerning the background,

character, and conduct of a person convicted of an offense which a court of the

United States may receive and consider for the purpose of imposing an appropriate

sentence.” 18 U.S.C. § 3661; see also United States v. Faust, 456 F.3d 1342, 1348

(11th Cir. 2006) (noting that “18 U.S.C. § 3661 . . . remains intact post-Booker”).

However, we have held that a district court’s sentencing discretion under § 3661 is

not unlimited because a district court is still subject to the limitations provided in

testimony of an ATF agent, who testified that Nicoll’s initial blood test showed that several drugs
were in his system shortly after the fatal accident. The district court also entered the medical
report into evidence. The ATF agent also testified that the state of Florida had not yet charged
Nicoll in relation to that accident pending receipt of an independent blood analysis.

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§ 3553(a). United States v. Burgos, 276 F.3d 1284, 1288-90 (11th Cir. 2001). A

sentence, therefore, must accomplish one of the purposes in § 3553(a), and a

sentence imposed in order to accomplish some other purpose would be unlawful.

Id. at 1289-92 (holding that the district court erred in taking into account the

defendant’s lack of cooperation in a separate case because there was no legitimate

§ 3553(a) purpose for the court to consider this conduct).

Furthermore, although a court may consider evidence regarding the

sentencing factors without regard to its admissibility under the rules of evidence,

the evidence must be sufficiently reliable. See U.S.S.G. § 6A1.3(a) (noting that in

sentencing a defendant, “the court may consider relevant information without

regard to its admissibility under the rules of evidence . . . , provided that the

information has sufficient indicia of reliability,” and suggesting in the commentary

that evidence should be proven by a preponderance of the evidence); cf. Faust,

456 F.3d at1347 (holding that, in the context of determining whether a sentencing

enhancement applies, a court may consider conduct for which the defendant was

not convicted only if such conduct is proven by a preponderance of the evidence).

We conclude from the record that the district court here did not err by

allowing Mr. Edwards, the husband of the women killed in the car accident caused

by Nicoll, to make a statement at Nicoll’s sentencing hearing because the

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statement was relevant to the factors and purposes contained in 18 U.S.C.

§ 3553(a), and the court did not consider the statement for an improper purpose.

C. REASONABLENESS OF SENTENCE

Finally, Nicoll argues that his sentence of 180 months was procedurally and

substantively unreasonable. We review the reasonableness of a sentence under a

“deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41,

128 S. Ct. 586, 591, 169 L. Ed. 2d 445 (2007). “[T]he party who challenges the

sentence bears the burden of establishing that the sentence is unreasonable in the

light of both [the] record and the factors in section 3553(a).” United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005).

A sentence may be either procedurally or substantively unreasonable. See

Talley, 431 F.3d at 786. A sentence is procedurally unreasonable if, for example,

the district court fails to calculate or improperly calculates the guideline range,

treats the Sentencing Guidelines as mandatory, fails to consider the § 3553(a)

factors, selects a sentence based on clearly erroneous facts, or fails to explain

adequately the chosen sentence, including an explanation for any deviation from

the guideline range. United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir.

2008). A sentence is substantively unreasonable “if it does not achieve the

purposes of sentencing stated in § 3553(a).” United States v. Pugh, 515 F.3d

15
1179, 1191 (11th Cir. 2008) (quotation omitted). Pursuant to § 3553(a), the

sentencing court shall impose a sentence “sufficient, but not greater than

necessary,” to comply with the purposes of sentencing listed in § 3553(a)(2),

namely reflecting the seriousness of the offense, promoting respect for the law,

providing just punishment for the offense, deterring criminal conduct, protecting

the public from future criminal conduct by the defendant, and providing the

defendant with needed educational or vocational training or medical care. See 18

U.S.C. § 3553(a)(2). The sentencing court must also consider the following

factors in determining a particular sentence: the nature and circumstances of the

offense and the history and characteristics of the defendant, the kinds of sentences

available, the applicable guideline range, the pertinent policy statements of the

Sentencing Commission, the need to avoid unwanted sentencing disparities, and

the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).

When a district court decides that a variance is in order, “it should explain

why that variance is appropriate in a particular case with sufficient justifications.”

United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir.) (quotation omitted), cert.

denied, 129 S. Ct. 2847 (2009). “The justifications must be compelling enough to

support the degree of the variance and complete enough to allow meaningful

appellate review,” but the district court need not provide an extraordinary

16
justification for a sentence outside the guidelines range. Id. (quotations omitted).

“The district court must evaluate all of the § 3553(a) factors when arriving at a

sentence, but is permitted to attach great weight to one factor over others.” Id. at

1237 (quotation and citation omitted). However, “a sentence based on an

improper factor fails to achieve the purposes of § 3553(a) and may be

unreasonable regardless of length.” United States v. Arevalo-Juarez, 464 F.3d

1246, 1249 (11th Cir. 2006) (quotation and alterations omitted). When

considering whether a sentence is substantively reasonable, we have compared the

sentence imposed to the statutory maximum. See United States v. Valnor, 451

F.3d 744, 751-52 (11th Cir. 2006) (affirming an upward variance and observing

that the sentence imposed was appreciably below the statutory maximum).

Nicoll has failed to demonstrate that his sentence was either procedurally or

substantively unreasonable. As to the procedural reasonableness, we conclude

that the district court correctly calculated Nicoll’s guideline range, adequately

explained its reasons for imposing an upward variance, explicitly acknowledged

that the Guidelines were not mandatory, and considered all of the § 3553(a)

factors. As to the substantive reasonableness, the court thoroughly reviewed and

discussed the § 3553(a) factors, and did not abuse its discretion in imposing an

above-guideline sentence.

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 CONCLUSION

For the aforementioned reasons, we affirm Nicoll’s convictions and total

sentence.

AFFIRMED.

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