United States v. Duncan

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12287 MARCH 18, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________

D.C. Docket No. 8:04-cr-00085-SCB-TBM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSHUA BLAINE DUNCAN,

Defendant-Appellant.

________________________

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

(March 18, 2011)

Before BARKETT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
 Joshua Blaine Duncan appeals the district court’s revocation of his

supervised release and imposition of a 24-month sentence, pursuant to 18 U.S.C.

§ 3583(e)(3). After review, we affirm.

I. BACKGROUND FACTS

A. Conviction and Sentence

After pleading guilty in 2004, Duncan was convicted of conspiracy to

dispose of a firearm to a person who was an unlawful user of, or addicted to, any

controlled substance, in violation of 18 U.S.C. § 371.

Duncan’s undisputed presentence investigation report (“PSI”) noted, among

other things, that: (1) Duncan had an extensive history of substance abuse and

crimes involving, inter alia, possession of cocaine and marijuana, aggravated

battery and numerous burglaries and thefts; (2) Duncan believed his criminal

history stemmed from his drug abuse; (3) in 2002 Duncan’s stepfather committed

suicide and Duncan was at his stepfather’s side until he died; (4) since the suicide,

Duncan had mental health problems and was abusing prescription and illegal

drugs; and (5) while in federal custody, Duncan was diagnosed with post-

traumatic stress disorder (“PTSD”) and panic disorder and was taking anti-anxiety

medication.

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 The district court imposed a 60-month sentence, followed by three years’

supervised release. The district court required Duncan to participate in a drug

treatment program as a special condition of supervised release.

B. Petition to Modify Supervised Release

On October 24, 2007, Duncan began his supervised release term. On

December 10, 2008, the Probation Office filed a petition to modify the conditions

of Duncan’s supervised release. According to the petition, in late October and

early November 2008, Duncan reported to a substance abuse counselor that he was

hearing voices. The Probation Office recommended that the district court modify

Duncan’s conditions of supervised release to include mental health counseling.

The district court granted the petition.

C. First Petition to Revoke Supervised Release

On March 3, 2009, the Probation Office filed a petition alleging that

Duncan had violated multiple conditions of supervised release, including: (1)

failure to submit written monthly reports between May 2008 and January 2009

(Violation 1); (2) positive urinalysis for benzodiazephine on March 1, 2008

(Violation 2); (3) failure to participate in drug aftercare treatment (Violations 4

3
and 5);1 and (3) failure to participate in mental health counseling on February 23,

2008, December 24, 2008, January 7, 2009 and January 14, 2009 (Violations 6 and

7).

In addition, the petition alleged that Duncan failed to permit his Probation

Officer, Joseph Wigley, to visit him at home or elsewhere from March 18, 2008 to

June 22, 2008 because Duncan claimed to be suffering from Methicillin-resistant

Staphylococcus Aureus (“MRSA”) (Violation 3). The petition further alleged that,

despite multiple requests, Duncan “failed to visit a physician during this period to

confirm whether or not he had MRSA, so that” Officer Wigley could visit him.

The Probation Office recommended that Duncan’s term of supervised release be

revoked. On March 3, 2009, the district court issued a warrant for Duncan’s

arrest, but attempts to arrest Duncan were unsuccessful. The Probation Office had

no contact with Duncan for over a year until he was arrested on March 30, 2010.

D. Second Petition to Revoke Supervised Release

On April 6, 2010, the Probation Office filed a second petition to revoke

Duncan’s supervised release term. The petition re-alleged the violations in the

first petition and added two new allegations (Violations 8 and 9). Specifically,

1
More specifically, Duncan was discharged from drug treatment on August
5, 2008 and January 14, 2009, due to numerous missed appointments
4
this superseding petition alleged that, on February 26, 2010, Duncan committed

new criminal conduct, including state charges of aggravated assault and battery-

domestic violence. According to the petition, Duncan pushed his victim’s head

against a wall, held a gun to her head and threatened to kill her.

E. Revocation Hearing

Because Duncan’s main contention on appeal relates to his apparent

competence, we review what happened at the revocation in detail. At his May 4,

2010 revocation hearing, Duncan was represented by counsel. When asked

whether he had taken any drugs or medicines within the past 24 hours, Duncan

responded that he had taken only cold medicine and that he had not taken anything

that would affect the clarity of his mind.

Duncan admitted Violations 1, 2, 4, 5, 6 and 7, but denied Violations 3, 8

and 9. As to Violation 3, failing to permit Officer Wigley to visit, Duncan argued

that Officer Wigley advised Duncan that he (Officer Wigley) would not visit

Duncan’s residence and Duncan was not to visit the Probation Office until Duncan

had been cleared by a doctor. Duncan claimed to have evidence of doctor visits,

hospitalization and photographs of the infection, but never introduced this

evidence. Duncan did not testify at the hearing.

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 As to the new criminal conduct in Violations 8 and 9, Duncan advised the

district court that the state charges were dismissed and submitted “letters of

release” as to the state charges. On March 28, 2010, the victim, Duncan’s live-in

girlfriend Lisa Harris, was found dead in the Hillsborough County River. Duncan

maintained that he was not a suspect in his girlfriend’s homicide and was

cooperating with investigators.

Duncan’s current Probation Officer, Dina Roman Lopez, testified that

Duncan’s case was transferred to her in November 2008 because she is the mental

health specialist. Officer Lopez confirmed that Duncan was diagnosed with

PTSD, depression and anxiety.

Officer Lopez was not supervising Duncan at the time of alleged Violation

3. Officer Lopez said that Duncan’s file documented that numerous times Officer

Wigley instructed Duncan to verify his condition, but contained nothing from

Duncan until a letter faxed on June 13, 2008 from a doctor stating that Duncan had

previously suffered from MRSA, but was not currently contagious. According to

Officer Lopez, Officer Wigley felt he could not safely go to the residence “until

something was confirmed.”

As to Violations 8 and 9, Officer Lopez spoke with the state attorney, who

advised her that the charges against Duncan were dismissed after the victim, Lisa

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Harris, failed to appear for a deposition. Approximately ten days later, Harris was

found dead in the river. A homicide investigation was pending while they awaited

a toxicology report from the Coroner’s Office.

Officer Lopez obtained a copy of the taped 911 call, which was played at

the revocation hearing. Officer Lopez testified that the 911 tape was consistent

with the police report, which indicated that Duncan and his girlfriend were

involved in a strangulation incident on December 27, 2009. Officer Lopez

investigated that earlier incident and determined that the resulting charges of

aggravated and simple battery were dropped after Lisa Harris signed a waiver of

prosecution. According to the police report for the December 27, 2009 incident,

Duncan threw Harris to the ground, grabbed her throat and attempted to strangle

her before fleeing.

According to Officer Lopez, when Duncan failed to comply with treatment

by missing appointments, Officer Wigley “instituted sanctions and attempted to

work with [Duncan] . . . instead of asking the Court for adverse action.” In March

2009, after Duncan was transferred to Officer Lopez’s supervision, Officer Lopez

informed Duncan she was “going to proceed with requesting adverse action from

the Court.” Officer Lopez had no further contact with Duncan. On two occasions,

Officer Lopez attempted to visit Duncan’s residence, but a pit bull was loose on

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the property. Officer Lopez tried to call Duncan on her cell phone, “got negative

results” and did not get out of her car.

The government requested a 24-month sentence. Duncan’s counsel argued

that Duncan suffered from substance abuse and mental health problems, was in

“bad shape” and “need[ed] help.” Duncan’s counsel did not request a specific

sentence, but requested that no supervised release accompany any additional

incarceration.

By a preponderance of the evidence, the district court found that Duncan

had committed Violation 3. The district court stated that Violation 3 “may be

incorrectly worded,” but found that from March 18 to June 22, Officer Wigley was

unable to check on Duncan because Duncan did not promptly provide proof that

he had MRSA. The district court concluded that Duncan’s conduct was a violation

of condition ten of his supervised release, which required Duncan to permit his

probation officer to visit him at any time, at home or elsewhere. The district court

concluded that the government had not proved the aggravated assault and battery

alleged in Violations 8 and 9.

The district court confirmed that Duncan’s advisory guidelines range was 8

to 14 months’ imprisonment, with a statutory maximum of 24 months’

imprisonment. The district court stated that Duncan was a “problem” and a

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“danger to society” based on: (1) his extensive criminal history, (2) his mental

health problems, (3) the fact that there were two 911 calls involving him, (3) the

Probation Office had difficulty visiting him, and (4) he did not turn himself in on a

warrant that was outstanding for over a year. The district court stressed its

concern for protecting the community and Duncan’s “inability to do supervised

release.” The district court imposed a 24-month sentence with no term of

supervised release. Duncan filed this appeal.

II. DISCUSSION

A. Failure to Hold Competency Hearing Sua Sponte

Duncan argues that the district court should have inquired sua sponte into

Duncan’s competency to participate in the revocation hearing and to admit any of

the alleged violations of supervised release.2

“[A]t any time after the commencement of probation or supervised release

and prior to the completion of the sentence,” the district court must sua sponte

conduct a hearing to determine the defendant’s mental competence “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

2
We review for abuse of discretion a district court’s failure to conduct a competency
hearing sua sponte. United States v. Williams, 468 F.2d 819, 820 (5th Cir. 1972).

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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). The district court

must sua sponte conduct a competency hearing when the information known to the

district court is “sufficient to raise a bona fide doubt regarding the defendant’s

competence.” Tiller v. Esposito, 911 F.2d 575, 576 (11th Cir. 1990). In

determining whether the district court should have sua sponte held a competency

hearing, we consider: (1) evidence of the defendant’s irrational behavior; (2) the

defendant’s demeanor during the proceedings; and (3) prior medical opinion as to

the defendant’s competence to stand trial. Id.

Here, there is no evidence of irrational behavior around the time of the May

2010 revocation hearing. There was evidence that Duncan reported hearing voices

in the fall 2008. As a result, the district court modified Duncan’s supervised

release terms to include mental health counseling. However, there is no evidence

that Duncan was hearing voices almost two years later, at the time of his

revocation hearing.

Importantly, the transcript of the revocation hearing suggests Duncan’s

demeanor during the hearing was unexceptional. Duncan responded rationally and

appropriately to questions and did not give the district court any reason to believe

that Duncan was, at the time of the hearing, unable to understand the nature and

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consequences of the revocation proceeding or to assist his counsel in his defense.

There was no prior medical opinion regarding Duncan’s mental competency to

stand trial or to plead guilty.

There was testimony that Duncan had been diagnosed with PTSD,

depression and anxiety, and defense counsel noted Duncan’s substance abuse and

mental health issues, describing Duncan as “in bad shape.” However, “the mere

presence of mental illness or other mental disability at the time” does not mean the

defendant is mentally incompetent. See Bolius v. Wainwright, 597 F.2d 986, 990

(5th Cir. 1979).3 And, although defense counsel was aware of Duncan’s mental

health problems, he did not raise the issue of Duncan’s competency. See United

States v. Rodriguez, 799 F.2d 649, 655 (11th Cir. 1986) (explaining that defense

counsel’s failure to raise the issue of the defendant’s competency is persuasive

evidence that the defendant was competent). Given the record as a whole, we

conclude that the information the district court had at the revocation hearing did

not raise a “bona fide doubt” as to Duncan’s mental competence.

B. Sufficiency of the Evidence as to Violation 3

3
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (holding that
decisions of the former Fifth Circuit on or before September 30, 1981 are binding precedent in
the Eleventh Circuit).

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 Duncan argues that the district court’s finding that Duncan did not permit

Officer Wigley to visit him between March and June 2008 was not supported by

the record.4

Under 18 U.S.C. § 3583(e), a district court may revoke a defendant’s term

of supervised release and, after considering the 18 U.S.C. § 3553(a) factors, may

impose a prison sentence when it finds by a preponderance of the evidence that the

defendant violated a condition of supervised release. 18 U.S.C. § 3583(e)(3); see

also United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006).

Here, Officer Lopez’s testimony supports the district court’s finding.

Officer Lopez testified that Duncan’s case file indicated that Officer Wigley asked

Duncan numerous times to provide medical confirmation of his highly contagious

MRSA infection and that Duncan knew Officer Wigley did not feel safe visiting

him until then. Furthermore, the file contained no such medical confirmation until

the June 13, 2008 faxed letter stating that Duncan was no longer contagious. In

other words, Duncan’s failure to comply with Officer Wigley’s repeated requests

4
We review a district court’s revocation of a supervised release term for an abuse of
discretion. United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994). A district court’s
findings of fact made at a revocation hearing are binding unless they are clearly erroneous.
United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993).

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over a three-month period effectively and understandably prevented any visits

during that time.

Duncan’s complaint that the government did not present Officer Wigley’s

testimony is unavailing. First, Duncan did not raise this objection in the district

court. Second, the Federal Rules of Evidence are not applicable in revocation

proceedings, and the district court may, after balancing the defendant’s

confrontation right against the government’s reasons for denying confrontation,

admit hearsay evidence it finds reliable. See United States v. Frazier, 26 F.3d 110,

114 (11th Cir. 1994). Furthermore, on appeal Duncan does not challenge the

reliability of Officer Lopez’s hearsay testimony or argue that it was inadmissible

under Frazier’s balancing test.5

C. Reasonableness of 24-month Sentence

5
Within its discussion of the sufficiency of the evidence supporting Violation 3, Duncan’s
appellate brief states in one sentence that the district court “unfairly permitted the Government to
amend the allegations in such a manner so as to ensure that it secured a violation” and that “the
Government’s attempt to amend the violation at the close of testimony” denied him notice to
defend the allegation. To the extent Duncan attempts to make a due process argument, he did not
raise it in the district court. Furthermore, Duncan’s appellate brief offers no legal analysis or
supporting citation to authority. Under the circumstances, Duncan did not sufficiently preserve
this issue for appellate review. See United States v. Jernigan, 341 F.3d 1273, 1284 n.8 (11th Cir.
2003) (explaining that an issue was abandoned where the defendant’s brief made only “passing
references” to the issue “as background to the claims he does expressly advance or [are] buried
within those claims”); see also Fed. R. App. P. 28(a)(9)(A) (requiring argument portion of the
brief to contain “contentions and the reasons for them, with citations to the authorities and parts
of the record on which the appellant relies”).

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 Duncan contends his 24-month sentence is procedurally and substantively

unreasonable.

Before imposing a prison term upon revocation, the district court must

consider the factors in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(e).6 The

district court also must consider the policy statements in Chapter 7 of the

Sentencing Guidelines, one of which provides recommended, non-binding ranges

of imprisonment. United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006).

We review a sentence imposed upon revocation of supervised release for

reasonableness. Sweeting, 437 F.3d at 1106-07. Our reasonableness review

applies the deferential abuse of discretion standard. Gall v. United States, 552

U.S. 38, 41, 46, 128 S. Ct. 586, 591, 594 (2007). We first look at whether the

district court committed any significant procedural error and then at whether the

sentence is substantively reasonable under the totality of the circumstances and the

§ 3553(a) factors. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).

6
The relevant § 3553(a) factors that the court must consider are: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the need to
afford adequate deterrence; (3) the need to protect the public; (4) the need to provide the
defendant with educational or vocational training or medical care; (5) the Sentencing Guidelines
range and pertinent policy statements of the Sentencing Commission; (6) the need to avoid
unwanted sentencing disparities; and (7) the need to provide restitution to victims. See 18 U.S.C.
§ 3583(e) (cross referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7)).

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The party challenging the sentence has the burden to show it is unreasonable.

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

As to his procedural reasonableness claim, Duncan argues that the district

court relied on clearly erroneous facts.7 We disagree. Duncan’s extensive

criminal history was supported by the criminal history section of his PSI, to which

Duncan has never raised any objection. See United States v. Beckles, 565 F.3d

832, 844 (11th Cir. 2009) (concluding that facts in the PSI to which the defendant

does not object are deemed admitted for purposes of sentencing). Duncan

admitted failing to participate in mental health and substance abuse counseling.

The district court heard the 911 call made by Lisa Harris in which she stated that

Duncan had held a gun to her head and threatened to kill her and mentioned an

earlier incident in which Duncan had tried to strangle her.8 Duncan did not object

to the admission of this evidence, and the district court was able to make its own

determination of the weight to accord it. Officer Lopez’s testimony supported the

finding that Duncan prevented Officer Wigley from visiting him by failing to

7
Duncan does not dispute that his recommended imprisonment range was properly
calculated as 8 to 14 months, that the district court treated this range as advisory and that the
district court considered the § 3553(a) factors. Because Duncan’s original firearm offense was a
Class D felony, Duncan’s maximum statutory term of imprisonment upon revocation was two
years. See 18 U.S.C. § 3583(e)(3).
8
The district court also appears to have reviewed copies of the police reports for the two
incidents, although these reports and the taped 911 call are not in the record on appeal.

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promptly provide confirmation of his medical condition, that Officer Lopez’s own

attempts to visit Duncan were thwarted by the presence of a pit bull, and that

Duncan did not contact the Probation Office for over a year during his supervised

release.

Duncan’s claim that the district court failed to adequately explain the

sentence it imposed is also belied by the record. The district court cited the

§ 3553(a) factors and specifically discussed several factors, including Duncan’s

history and characteristics and the need to protect the public.

Likewise, Duncan has not shown that his 24-month sentence is

substantively unreasonable. Duncan’s criminal history spans almost fifteen years

and began when he was only fifteen years old. Duncan has a long history of

substance abuse problems. Duncan also has struggled with mental health

problems, including PTSD and panic disorder. Against this backdrop, while on

supervised release, Duncan repeatedly failed to appear for mental health or

substance abuse counseling, tested positive for illegal drug use, stopped filing the

required monthly reports with his Probation Officer, did not make it easy for his

Probation Officers to visit him and eventually disappeared for over a year. During

that year, Duncan’s live-in girlfriend made two 911 calls claiming that Duncan had

battered her.

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 Given the totality of the circumstances, we cannot say the 24-month

sentence was substantively unreasonable.

AFFIRMED.

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