United States v. Jean-Daniel Perkins

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 13-13444
________________________

D.C. Docket No. 1:10-cr-00097-JEC-LTW-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEAN-DANIEL PERKINS,
a.k.a. LJ,
a.k.a Daniel Mathews,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
________________________

(June 1, 2015)

Before WILLIAM PRYOR and JORDAN, Circuit Judges, and HAIKALA, ∗
District Judge.

∗
Honorable Madeline Hughes Haikala, United States District Judge for the Northern District of
Alabama, sitting by designation.
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HAIKALA, District Judge:

Jean-Daniel Perkins appeals his conviction and the 360-month sentence that

the district court imposed after a jury, in Mr. Perkins’s absence, found him guilty

on all counts of a 37-count indictment concerning a credit card fraud scheme.

Following his arrest, Mr. Perkins embarked upon a new scheme – one designed to

ensnarl the proceedings against him so that he might avoid trial altogether. Mr.

Perkins rejected two court-appointed attorneys, attempted to hijack every hearing

that he attended, and refused to participate in his own trial, threatening physical

violence if the district judge tried to compel him to enter the courtroom. On

appeal, through appointed counsel, Mr. Perkins raises multiple challenges to the

conviction and to his sentence. We affirm.

I. BACKGROUND

In June 2010, a grand jury indicted Mr. Perkins on two counts of conspiracy

to commit bank fraud, 28 counts of bank fraud, four counts relating to counterfeit

access devices, and one count of aggravated identity theft. The indictments pertain

to a complex credit card fraud scheme that Mr. Perkins operated for approximately

14 months. Mr. Perkins completed thousands of fraudulent transactions that netted

more than $4 million in ill-gotten gains.

Shortly after his arrest on these charges, Mr. Perkins appeared before a

magistrate judge. The magistrate judge advised Mr. Perkins of his constitutional

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rights, including his right to counsel. The magistrate judge stated: “You may hire

your own attorney or, in the event you are not able to afford an attorney, the court

may appoint someone to represent you at no cost to you.” The magistrate judge

and Mr. Perkins then had the following exchange:

[The Court]: It is my understanding that you would like the Court to
appoint someone to represent you and that you are not able to afford
an attorney; is that correct?

The Defendant: Yes, ma’am.

The Court: To that extent you have completed a financial affidavit.
Do you either swear or affirm that the information provided in the
affidavit is true to the best of your knowledge?

The Defendant: Yes, ma’am.

The magistrate judge found that Mr. Perkins could not afford an attorney, so she

appointed a lawyer to represent Mr. Perkins.

Shortly after his appointment, Mr. Perkins’s attorney filed a motion to

suppress evidence that authorities uncovered during two separate searches. Mr.

Perkins’s attorney also filed a motion to suppress an out-of-court identification. A

few months later, Mr. Perkins’s attorney filed a supplement to the motion to

suppress.

While those evidentiary motions were pending, Mr. Perkins’s attorney filed

a motion to withdraw. A magistrate judge heard the motion. Mr. Perkins and his

attorney attended the hearing. The magistrate judge asked Mr. Perkins to explain

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what was going on. Mr. Perkins responded: “I haven’t really consented to

anything. I haven’t gave any permission to do anything . . . .” After hearing a

description of the work that Mr. Perkins’s attorney had done and the challenges

that Mr. Perkins’s attorney faced in representing Mr. Perkins, the magistrate judge

asked Mr. Perkins if he had anything to add. Mr. Perkins replied: “I just wanted to

get on the record that I never consented to anything, period, anything at all.” After

Mr. Perkins spoke about a few particular concerns, the magistrate judge remarked,

“I am not sure what you are informing the Court or how you are expressing your

desire to proceed in the case.” Mr. Perkins replied, “I’m not saying anything at all

as far as I’m just making a statement . . . [L]ike I said, I’m not consenting to

anything. I’m not saying anything.” The magistrate judge found that the attorney-

client relationship had been severed, and she appointed a new attorney to represent

Mr. Perkins.

Mr. Perkins’s second attorney represented him at an evidentiary hearing on

the pending motions to suppress. After the hearing, the new attorney filed a post-

hearing brief in support of the motions.

A little more than four months after the magistrate judge appointed Mr.

Perkins’s second attorney, Mr. Perkins filed a “Revocat[i]on of Power of

Attorney.” In that document, Mr. Perkins stated that he “revoke[d], cancel[ed],

and annul[led]” his second attorney’s representation. Mr. Perkins’s second

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attorney then filed a motion to withdraw. A magistrate judge held a hearing on the

motion and had the following exchange with Mr. Perkins:

The Court: Do you want Mr. Spencer to withdraw as your attorney?

[Mr. Perkins]: For and on the order the record I have never requested
any administrative (unintelligible) whatsoever from this court. I have
never requested any representation. . . . I have never accepted the
benefits as they are under the Criminal Justice Act of 1964. I am not
an indigent, a ward . . . .

The magistrate judge advised Mr. Perkins that he had “the constitutional

right to effective assistance of counsel” and explained to Mr. Perkins that if he

wished “to proceed without an attorney,” he would “have to waive or give up [his]

right to effective assistance of counsel.” The magistrate judge asked: “Do you

want to waive or give up your right to effective assistance of –.” Mr. Perkins

interrupted and interjected: “I do not accept your offer.” Again, the magistrate

judge asked Mr. Perkins: “[D]o you want to waive or give up your right to

effective assistance of counsel?” Mr. Perkins stated: “I do not accept any of your

rights. . . . How can I waive something that I have never accepted and that does not

apply to me?” The magistrate judge concluded: “I have asked the defendant

whether he will waive his right to effective assistance of counsel. He has not given

me a responsive answer and so my decision is that Mr. Spencer will continue.”

Mr. Perkins stated: “I do not accept your order.”

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Shortly afterwards, the district judge denied Mr. Perkins’s motions to

suppress and set Mr. Perkins’s case for trial on June 20, 2011. Within one week of

the trial setting, Mr. Perkins’s attorney renewed his motion to withdraw. He

stated: “Mr. Perkins ha[s] made it clear that he does not want the undersigned as

counsel,” and “Mr. Perkins never wanted counsel appointed to him under the

Criminal Justice Act.” The lawyer attached to his motion an affidavit in which Mr.

Perkins directed the attorney to “cease and desist all action for and on behalf of

Jean-Daniel Perkins.”

The district court took up the renewed motion to withdraw at Mr. Perkins’s

pretrial conference. After reviewing a collection of pro se filings that Mr. Perkins

submitted, the court asked: “Mr. Perkins, are you trying to indicate that you want

to waive your right to counsel?” Mr. Perkins would not respond to the district

judge’s questions. Instead, he repeatedly asked for the judge’s name. He

questioned whether the judge had “proof of claim” of his “obligation to have

representation,” he asked whether the district court had a “contract” with him, and

he ordered the district judge to dismiss the charges in the indictment. With respect

to his right to appointed counsel, Mr. Perkins stated:

For and on the record, are you aware of the fact that I’ve never
accepted representation? Can you provide evidentiary proof that I
have accepted representation? Is there anything on the record that
will show that I accepted representation? Is there any contract? Is
there any CJA 23 or anything of record that will show that I’ve ever
accepted representation?
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The district judge asked Mr. Perkins how he intended to defend himself at

trial. Mr. Perkins replied: “What if I don’t defend? What if I’m not a defendant?

Where is your defendant? How can you have a defendant if I’m not here to defend

anything?”

The district court asked Mr. Perkins’s attorney for his thoughts on the

motion to withdraw. Counsel stated:

Mr. Perkins’ position as I understand it, Judge, is that when he was
arrested and brought to this Court, he never asked to be appointed
counsel. That he never said on any record, paper, document that he
needed counsel, and that therefore any appointment of counsel is
invalid. . . . I will say that he’s never made threats or anything like
that, but he has indicated that my representation is in fact tortious.

The district judge explained to Mr. Perkins that he had two choices: he could

represent himself or his court-appointed attorney could represent him. Because

Mr. Perkins did not clearly express a desire to represent himself and adhere to the

rules of the district court, the court denied the motion to withdraw. The district

judge observed:

Were I looking at this for the first time the statements made by the
defendant today and his repetitive documents, I would think we were
dealing with someone who is delusional who needed to be sent to
Butner for a mental examination . . . But I know that’s not what we’re
dealing with . . . This is definitely studied, definitely contrived,
definitely manipulative. So I don’t see any reason to send this
defendant off for a competency examination.

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The district court added that a criminal defendant who wishes to represent himself

must be willing to comply with court procedure and court orders, and Mr. Perkins,

in word and deed, demonstrated that he intended to obstruct court proceedings

rather than comply with court rules. As if to confirm the district court’s

observation, when the district judge began to talk about the date on which trial

would begin, Mr. Perkins interjected: “You’re not going to tell me anything. You

don’t control me.”

On the first day of trial, Mr. Perkins picked up where he left off at the

pretrial conference. He refused to come out of his holding cell. Mr. Perkins

threatened that if the marshals tried to force him to go to the courtroom, he would

go “kicking and screaming.” The district judge discussed at length with a

courtroom deputy, Mr. Perkins’s lawyer, and counsel for the government whether

to have the marshals bring Mr. Perkins to the courtroom. The court considered

alternative audio and video arrangements that would enable Mr. Perkins to observe

the trial if he was not willing to attend. After many failed attempts to persuade Mr.

Perkins to enter the courtroom so that the court could begin jury selection, the

district judge met with Mr. Perkins in an interview room in the holding area.

Counsel for the parties and a court reporter accompanied the district judge to the

interview room. When the court tried to advise Mr. Perkins of his rights

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concerning trial, Mr. Perkins talked over the judge and shouted “I do not

understand[,] I do not agree[,]” and “I am here against my will.”

Unable to obtain Mr. Perkins’s consent to attend trial, the district court

provided contemporaneous audio/video coverage of the trial proceedings. Before

commencing jury selection, the district court, via video feed, advised Mr. Perkins:

We would be glad at any time to bring you back in [to the courtroom].
If you just let a marshal know that you want to come back, we will be
glad to have you in the trial.

Mr. Perkins never entered the courtroom, but his lawyer attended trial. The district

court gave Mr. Perkins opportunities to talk with his lawyer throughout the trial.

On the second day of trial, outside of the presence of the jury, the district

judge remarked to counsel that although Mr. Perkins’s actions made him seem like

he was mentally unstable, the court believed Mr. Perkins’s behavior was purely

manipulative. The district judge remarked that she saw no need for a competency

hearing because Mr. Perkins was employing a calculated strategy to disrupt

proceedings. She stated:

I have no concerns about this defendant’s competency. I view this as
manipulative. I believe the evidence, when it comes in, is going to
show that he was quite clever at figuring out how to obtain millions of
dollars from different people. So I have absolutely no concern about
his competency in any way and I think the record in many ways will
show that this has been nothing but manipulative behavior on his part.

Before and during the trial, Mr. Perkins spoke with his family members

about the proceedings. Pursuant to jail policy, prison officials recorded those
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conversations. The taped conversations reveal Mr. Perkins’s defense strategy. Mr.

Perkins discussed with his family the mechanics of Rule 43 of the Federal Rules of

Criminal Procedure and researched what it means to be “present” at trial. Mr.

Perkins told his mother that he planned to act crazy to obstruct the trial

proceedings. He stated:

I got to go straight plump nuts before they even pick the jury. That’s
what I gotta do. I gotta go haywire on that bitch. . . . So I gotta be
plumb . . . plumb nuts before the shit even pop up . . . Don’t never act
sensible. . . . That’s how you got to do it. Who said I want to go trial.
I don’t want to go to no mother fucking trial. I don’t want no jury
trial. Who on the jury? . . . And just go crazy on that mother fucker. .
. . You bitches want to play games. This shit going to get real zoo-
like. (Mr. Perkins laughing).

Mr. Perkins later bragged about his behavior, explaining how he had

outsmarted the court and found the way to avoid punishment:

I went cold turkey on them bitches this morning. . . . I didn’t even go
out there. . . . They were saying . . . the judge kept sending people up
there trying to beg for . . . trying to beg me to come down there and
talk . . . on the record. . . . I was like, no, fucker. . . . So, I kept on
saying . . . and it was recorded and I kept saying it loud, talking over.
I kept saying I do not understand. I don’t agree. I do not understand.
I do not understand. . . .

I’m going to give you the game right now. I figured it out . . .

[T]he book says that trial doesn’t start until you . . . until . . . until you
are in the court . . . until you . . . until you are present. . . . And once
you are present, right, you have to be present when the first juror is
sworn in and go to . . . I never . . . you have to be in the court and
cross the bar. I never . . . I’m not . . . that’s my new thing. I ain’t

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going to court. When I get out of this mother fucker, I ain’t going to
court no more. . . . I’m not even crossing the bar.

[T]his shit could fuck the whole system up, man.

Following his conviction, Mr. Perkins filed a motion for a new trial. In the

motion, he argued that the district court violated Rule 43 because he was not

present at his trial. The district court issued a 56-page order describing Mr.

Perkins’s actions before and during trial and explaining in detail how the court

applied Rule 43 under the circumstances of the case. Ultimately, the district court

denied the motion, concluding that Mr. Perkins had not identified a Rule 43

violation and, alternatively, that Mr. Perkins invited any conceivable Rule 43

violation.

Prior to sentencing, Mr. Perkins filed a pro se motion for recusal of the

district judge. Mr. Perkins stated that the district judge tricked him into going into

the cell where the district court began trial. Mr. Perkins also claimed that the

district court said to him off the record that he should not resist because “we’re

going to get you anyway” and “[it’s] the ones like you that I hate the most.” The

district court denied Mr. Perkins’s motion for recusal.

Mr. Perkins refused to attend his sentencing hearing or to speak with his

attorney about sentencing. The district court set up a live video and audio feed, so

that Mr. Perkins could watch the sentencing proceeding. The district judge visited

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Mr. Perkins in a cell at the beginning of the sentencing hearing to try to give him

an opportunity to object to the presentence report, but Mr. Perkins refused to get

off of the toilet in his cell when the judge, the court reporter, and the attorneys for

the parties arrived. The district judge spoke to Mr. Perkins through the live feed

and offered to let him come into the courtroom at any time to voice objections to

the presentence report. Following the hearing, the district court gave Mr. Perkins

three weeks to read and object to the presentence report and the 360-month

sentence that she announced at the hearing. That sentence consisted of a 336-

month term for the extensive fraud that Mr. Perkins undertook and a consecutive

mandatory 24-month sentence for aggravated identity theft.

After the sentencing proceeding, Mr. Perkins’s attorney filed a motion for a

competency hearing. In the motion, the attorney asserted that a childhood

acquaintance stated that Mr. Perkins was taking antipsychotic drugs. The motion

also indicated that another inmate in jail with Mr. Perkins claimed that Mr. Perkins

“seemed crazy.” The district court denied the motion, reasoning that Mr. Perkins’s

actions reflected lucidity and that the new information was not sufficient to warrant

a competency hearing.

Appointed counsel filed this appeal on Mr. Perkins’s behalf.

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II. DISCUSSION

A. The Court will not Review Error that Mr. Perkins Invited.

In the district court, Mr. Perkins attempted to cash in on his constitutional

right to counsel and on the court’s procedural rules, using both as a means to avoid

prosecution. On appeal, he seeks to profit from his scheme. He argues that the

district court erred because the court forced appointed counsel on him and because

the court held a trial in his absence in violation of Rule 43 of the Federal Rules of

Criminal Procedure. We will not consider these arguments because Mr. Perkins

invited any error that the district court may have committed.

The rights that the Constitution provides to a criminal defendant are meant

as a shield, not a sword, and the Federal Rules of Criminal Procedure provide a

framework for the fair and efficient administration of all criminal cases. As Rule 2

states, the Federal Rules of Criminal Procedure “are to be interpreted to provide for

the just determination of every criminal proceeding, to secure simplicity in

procedure and fairness in administration, and to eliminate unjustifiable expense

and delay.” Fed. R. Crim. P. 2.

When, as in this case, a criminal defendant tries to manipulate the rules so

that he may avoid criminal prosecution, he subverts court procedure and operates

outside of the boundaries that the rules and the court decisions interpreting those

rules establish. The record in this case leaves no doubt that Mr. Perkins planned to

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sabotage the criminal proceedings against him. In Mr. Perkins’s words: “I’m

going to give you the game right now. I figured it out . . . [T]he book says that trial

doesn’t start . . . until you are in the court . . . . I ain’t going to court . . . I’m not

even crossing the bar . . . [T]his shit could fuck the whole system up, man.”

The “book” – i.e. the law – also says this: “Where a party invites error, the

Court is precluded from reviewing that error on appeal.” United States v. Harris,

443 F.3d 822, 823-24 (11th Cir. 2006). “The doctrine stems from the common

sense view that where a party invites the trial court to commit error, he cannot later

cry foul on appeal.” United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir.

2009). This waiver concept carries particular weight when, as here, a defendant

engages in a calculated effort to damage “the whole system.” There can be no

fairness in the administration of criminal procedure if a defendant can turn that

procedure on its head.

Mr. Perkins tried to do just that. Following his initial appearance in which

Mr. Perkins asked the magistrate judge to appoint counsel to represent him, Mr.

Perkins exploited every subsequent court appearance, insisting that he should not

“be identified as the defendant” and that the court should dismiss the charges

against him. Two magistrate judges and the district judge offered Mr. Perkins

multiple opportunities to discuss his efforts to have the court remove his court-

appointed counsel, but Mr. Perkins side-stepped the judges’ questions. When the

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district judge asked Mr. Perkins directly, “are you trying to indicate that you want

to waive your right to counsel,” Mr. Perkins asked the judge for her name and

demanded that she provide “proof of claim” of his “obligation to have

representation.”

Unable to shed his court-appointed lawyer, Mr. Perkins apparently decided

that the next best way to avoid a trial was to refuse to leave his cell on the day that

his trial was scheduled to begin. His tactic was simple: provoke a violation of

Rule 43’s requirement that a criminal defendant be present at “every trial stage,

including jury impanelment . . . .” Fed. R. Crim. P. 43(a)(2). Displaying disregard

for the members of the venire who sat waiting for jury selection to begin, Mr.

Perkins refused to get dressed for trial and refused to leave the holding cell. He

told one of the deputy marshals that the marshals would have to beat him, and he

would “be kicking and screaming to go into that courtroom.” When the district

judge went to see Mr. Perkins, he became violent and spoke over the judge when

she tried to persuade him to come to the courtroom.

A criminal defendant who engages in this kind of obstructive behavior does

so at his own peril. The system that Mr. Perkins attempted to disrupt is designed to

protect not only his rights but the rights of all defendants to the fair administration

of the proceedings against them. A district judge cannot permit a single defendant

to jeopardize the whole system. We find no readily apparent reversible error in the

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district judge’s decision to deny Mr. Perkins’s request to remove his court-

appointed counsel or in her decision to conduct the trial without Mr. Perkins in the

courtroom, but we do not pause long to consider these issues because we find that

Mr. Perkins invited any error that the district court may have committed.

Therefore, we reject Mr. Perkins’s Sixth Amendment challenge to his conviction

and his argument that the district court violated Rule 43.

B. The District Court did not Abuse Its Discretion when it Found that Mr.
Perkins was Competent to Stand Trial.

Mr. Perkins argues that the district court should have ordered a competency

hearing before his trial began. We disagree.

“The Due Process Clause of the Fifth Amendment prohibits the government

from trying a defendant who is incompetent.” United States v. Rahim, 431 F.3d

753, 759 (11th Cir. 2005) (citing U.S. Const. Amend. V and Pate v. Robinson, 383

U.S. 375, 378 (1966)). “Whether the defendant is competent is an ongoing

inquiry; the defendant must be competent at all stages of trial.” Id. In the absence

of a motion for a competency hearing from the government or from defense

counsel, a district court “shall order” a hearing to determine the mental

competency of a defendant “on its own motion, 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 is unable to

understand the nature and consequences of the proceedings against him or to assist

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properly in his defense.” 18 U.S.C. § 4241(a). A district court may rule on a

defendant’s competence “‘without benefit of a full dress hearing so long as the

court has no ‘bona fide doubt’ as to the competence of the defendant.’” United

States v. Nickels, 324 F.3d 1250, 1252 (11th Cir. 2003) (quoting United States v.

Cruz, 805 F.2d 1464, 1479 (11th Cir. 1986)). This Court reviews for abuse of

discretion a district court’s decision not to order a competency hearing prior to

trial. Id. at 1251.

After reviewing the record, we conclude that the district court did not abuse

its discretion in finding that Mr. Perkins was competent to stand trial. Before and

during trial, the district judge noted Mr. Perkins’s conduct and concluded, sua

sponte, that Mr. Perkins’s disruptive behavior was the product of a competent,

calculating mind. At the pretrial hearing, the district judge found that Mr.

Perkins’s disruptive conduct was studied, contrived, and manipulative, and she

stated, “I don’t see any reason to send this defendant off for a competency

hearing.” On the second day of trial, the judge made a similar finding. The record

confirms that Mr. Perkins planned and executed a strategy to stymie the district

court proceedings by saying things that sounded crazy, much like he designed and

executed the extensive fraud scheme that brought him before the district court.

The record reflects that Mr. Perkins was not unable to assist his attorney with his

defense; Mr. Perkins simply chose not to participate in his defense.

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Recordings of Mr. Perkins’s telephone calls with family members

demonstrate that Mr. Perkins carefully studied the Federal Rules of Criminal

Procedure and then developed tactics to avoid trial. The following conversation

between Mr. Perkins and his mother illustrates the point:

Mother: . . . Okay. Here it go. It say, presence of the defendant. The
Rule 43. Presence required. The defendant shall be present at the
arraignment at the time of the plea, and every stage of the trial
including the empanelment of the jury and the return of the verdict,
and at the imposition of sentence except as otherwise provided by this
rule.

...

Perkins: Yeah. You got to be present first.

Mother: Yeah. You have to be present first or have pleaded guilty or
nolo

Perkins: Contendre.

Mother: Or nolo contender.

Perkins: Yeah, that’s Rule 43 you’re under.

Mother: Yeah. Under Rule 43. They still saying that the only
shortcut was if you were present in the beginning.

...

Perkins: I get uh . . . you didn’t get a chance to pull that actual case,
though, huh?

Mother: Oh, yeah. I had pulled the case up, too. Let me see.

...

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Mother: The first sentence of this rule setting for necessity of the
defendant presence at arraignment and trial is a restatement of existing
law. Lewis v. United States and Diaz v. United States.

Perkins: Yeah. Diaz.

Admittedly, a defendant who engages in tactics like these may, as Mr.

Perkins argues, simultaneously suffer from mental illness. But on the present

record, we conclude that the district court did not abuse its discretion in concluding

that Mr. Perkins was competent to stand trial.

Following Mr. Perkins’s trial and his sentencing hearing but before the

district court entered the judgment and commitment order for this case, Mr.

Perkins’s appointed counsel filed a motion for a competency hearing. Before the

district court ruled on the motion, the court received the transcripts of Mr.

Perkins’s telephone calls from jail. The transcripts demonstrate that Mr. Perkins

chose to “act[] like a ****ing lunatic” to derail the proceedings against him. The

district court held that in those taped conversations, Mr. Perkins seemed lucid. The

record supports this conclusion. Consequently, the district court did not abuse its

discretion in denying Mr. Perkins’s motion for a competency hearing.

C. Mr. Perkins’s 360-Month Sentence is Proper.

Mr. Perkins argues that the district court erred in applying a two-step

enhancement to his sentence for obstruction of justice, and he contends that his

total sentence is substantively unreasonable. Neither argument persuades us.

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i.

When considering a district court’s imposition of an enhancement for

obstruction of justice, we review the district court’s factual findings for clear error

and the application of the factual findings to the sentencing guidelines de novo.

United States v. Doe, 661 F.3d 550, 565 (11th Cir. 2011). Unless it is harmless, an

error in the district court’s calculation of the applicable guideline range warrants

reversal. United States v. Barner, 572 F.3d 1239, 1247 (11th Cir. 2009). A

calculation error is harmless when a district judge clearly states that she would

impose the same sentence regardless of the enhancement, and the sentence

imposed is reasonable. United States v. Keene, 470 F.3d 1347, 1349-50 (11th Cir.

2006).

When she sentenced Mr. Perkins, the district judge imposed a two-level

enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1. Section

3C1.1 authorizes a district court to enhance a defendant’s offense level by two

levels when:

(1) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to (A) the
defendant’s offense of conviction and any relevant conduct; or (B) a
closely related offense.

U.S.S.G. § 3C1.1. A court may use the enhancement when a defendant “willfully

fail[s] to appear, as ordered, for a judicial proceeding.” Id., cmt. n.4(E).
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“Willfully” means the defendant consciously acted with the purpose of obstructing

justice. United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006).

Mr. Perkins’s actions throughout the district court proceedings fall within

the scope of § 3C1.1. As we have discussed, Mr. Perkins willfully set out to clog

the gears of the judicial process. He willfully failed to appear for his trial despite

the district judge’s repeated efforts to persuade him to attend. Although he did not

manufacture evidence, threaten witnesses, or give false testimony, he ignored court

procedures by filing multiple pro se motions while he had counsel, and he delayed

and disrupted court proceedings, even to the point of threatening violence. On the

record before the Court, there is no doubt that Mr. Perkins engaged in this conduct

in an attempt to obstruct or impede the proceedings in this case.

The district court did not clearly err in applying a § 3C1.1 enhancement to

Mr. Perkins’s sentence for his willful obstruction of the pretrial and trial

proceedings in this matter. See Massey, 443 F.3d at 819. But even if the district

court had erred in applying the enhancement, the error would be harmless because

the district judge unequivocally stated that she would have imposed the same 360-

month sentence even without the enhancement, and, as discussed below, that

sentence is reasonable. See Keene, 470 F.3d at 1349-50.

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ii.

A district court must issue a sentence that is “sufficient, but not greater than

necessary” to comply with the purposes of 18 U.S.C. § 3553(a)(2). 18 U.S.C. §

3553(a). Those purposes include the need for a sentence to reflect the seriousness

of the offense, promote respect for the law, provide just punishment for the

offender, deter criminal conduct, and protect the public from future criminal

conduct. 18 U.S.C. § 3553(a)(2).

We review the substantive reasonableness of a sentence for abuse of

discretion. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007).

Although we do not automatically presume that a sentence within the guidelines

range is reasonable, we ordinarily expect such a sentence to be reasonable. United

States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). We will vacate a sentence only

“if . . . we are left with the definite and firm conviction that the district court

committed a clear error of judgment in weighing the § 3553(a) factors by arriving

at a sentence that lies outside the range of reasonable sentences dictated by the

facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en

banc) (internal quotation marks and citations omitted). The Court commits to the

sound discretion of the district court the weight to be accorded to each § 3553(a)

factor. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007).

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Mr. Perkins’s 360-month sentence is reasonable. The district court properly

calculated the guidelines range, counting the victims’ loss amounts in a way that

was favorable to Mr. Perkins. Mr. Perkins’s sentence falls within the applicable

guidelines range. The record reflects that the district court considered Mr.

Perkins’s personal characteristics and history and concluded that, given Mr.

Perkins’s vast, well-planned scheme and his unrepentant behavior, a 360-month

sentence was reasonable. See Amedeo, 487 F.3d at 832. This does not represent a

clear error in judgment in light of the totality of the circumstances. Mr. Perkins’s

scheme involving hundreds of fraudulent credit cards and more than 100,000

account profiles claimed hundreds of victims. The district court found that in light

of the conduct at issue and Mr. Perkins’s criminal history, Mr. Perkins presents a

danger to society. The record supports this conclusion. Under the totality of the

circumstances, we find that the district court did not abuse its discretion in

imposing a 360-month sentence.

D. The District Judge was not Required to Recuse.

Mr. Perkins argues that the district court was obligated to recuse sua sponte

and that the district court erred when it denied Mr. Perkins’s pro se motion to

recuse before his sentencing hearing. We review these arguments under the abuse

of discretion standard. United States v. Berger, 375 F. 3d 1223, 1227 (11th Cir.

2004).

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A district judge must recuse sua sponte “in any proceeding in which his

impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).

Under § 455, the standard is whether an objective, fully informed lay
observer would entertain significant doubt about the judge’s
impartiality. . . . Furthermore, the general rule is that bias sufficient to
disqualify a judge must stem from extrajudicial sources.

Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1329 (11th Cir. 2002) (internal

quotation marks and citations omitted). Here, no objective, fully informed lay

observer would entertain significant doubt about the district judge’s impartiality.

Mr. Perkins set out to goad the district court. His conduct displayed complete

disregard for the district court. Mr. Perkins was proud of the fact that he

interrupted the district judge and spoke over her so that he could disrupt the pretrial

and trial proceedings in this case. The district judge refused to cede control of the

proceedings to Mr. Perkins. To the extent that some of the district judge’s

comments evince frustration with Mr. Perkins, that frustration stems solely from

judicial sources – namely, Mr. Perkins’s dilatory tactics and refusal to participate

in the judicial proceedings. The district court was not required to recuse under §

455.

Similarly, the district court did not abuse its discretion by denying Mr.

Perkins’s pro se motion for recusal under 28 U.S.C. § 144. Section 144 provides

that a district judge “shall proceed no further” when “a party . . . makes and files a

timely and sufficient affidavit that the judge . . . has a personal bias or prejudice”
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for or against any party. The affidavit must be filed “not less than ten days before

the beginning of the term at which the proceeding is to be heard” unless good

cause excuses a delay, and it must be “accompanied by a certificate of counsel of

record stating that it is made in good faith.” 28 U.S.C. § 144. Before a judge

recuses herself, a § 144 affidavit must be “strictly scrutinized for form, timeliness,

and sufficiency.” United States v. Womack, 454 F.2d 1337, 1341 (5th Cir. 1972). 1

Mr. Perkins’s affidavit did not meet the procedural requirements of § 144 because

it was not accompanied by a good-faith certificate from his appointed counsel of

record.

E. The District Court did not Commit Clear Error in Admitting an
Out-of-Court Photo Array Identification.

Mr. Perkins argues that the district court erred when it denied as moot

motions to suppress evidence that the Tampa City Police obtained through searches

of a bag that Mr. Perkins left in a restaurant, a computer that agents found inside of

the bag, and his residence. Mr. Perkins also challenges the admission of an out-of-

court identification, arguing that the photo array from which the identification was

made was unduly suggestive. A magistrate judge recommended that the district

court deny the photo identification motion and deny as moot the other motions to

suppress.

1
Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) (adopting as binding
precedent in this Court decisions that the former Fifth Circuit Court of Appeals issued prior to
October 1, 1981).
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Mr. Perkins objected only to the magistrate judge’s ruling on the

identification evidence; he did not object to the recommendation that the district

court deny the balance of the motions to suppress as moot. Because Mr. Perkins

did not object to the portion of the report and recommendation regarding the search

of the bag, the computer, and the residence, he waived his right to challenge the

district court’s rulings on those motions on appeal. Fed. R. Crim. P. 59; United

States v. Holt, 777 F.3d 1234, 1257-58 (11th Cir. 2015). If Mr. Perkins had not

waived the issue, based on the parties’ briefs and our review of the record, we

would conclude that the district court did not err in denying the motions to

suppress as moot. 2

Because Mr. Perkins objected to the portion of the magistrate judge’s report

and recommendation concerning the identification evidence, we must consider the

suppression ruling regarding that evidence. “‘A district court’s ruling on a motion

to suppress presents a mixed question of law and fact.’ We review the district

court’s findings of fact for clear error and its application of law to the facts de

novo, viewing all facts in the light most favorable to the party that prevailed in the

2
We note that Mr. Perkins’s argument concerning the laptop computer rests on a
misunderstanding of the record. During the suppression hearing before the magistrate judge, the
government stated that it would not seek to enter into evidence the laptop obtained from a
confidential informant or evidence discovered on that particular laptop. The government made
no such assertion about the laptop that was discovered in a bag that Mr. Perkins left at a
restaurant. The district court properly denied the motion to suppress the laptop from the
confidential informant as moot, and the government did not introduce that laptop at trial.

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district court” – here, the United States. United States v. Heard, 367 F.3d 1275,

1278 (11th Cir. 2004) (quoting United States v. Chanthasouxat, 342 F.3d 1271,

1275 (11th Cir. 2003)). We may affirm the denial of a motion to suppress on any

ground supported by the record. United States v. Caraballo, 595 F.3d 1214, 1222

(11th Cir. 2010).

Mr. Perkins argues that the district court should have excluded evidence of

an out-of-court photo array identification made by the manager of the restaurant

where Perkins left a bag containing evidence of his crimes. 3 The Court uses a two-

step process to determine whether an out-of-court identification was proper. “First,

we ask whether the original identification procedure was unduly suggestive. If we

conclude that it was, we then consider whether, under the totality of the

circumstances, ‘the identification was nonetheless reliable.’” United States v.

Brown, 441 F.3d 1330, 1350 (11th Cir. 2006) (quoting United States v. Diaz, 248

F.3d 1065, 1102 (11th Cir. 2001)). When determining whether a photo array is

unduly suggestive, we consider the size of the array, the manner of its presentation,

and the details of the photographs in the array.

3
Mr. Perkins also argues that because other unduly suggestive out-of-court identifications were
used as the basis for obtaining search warrants for his bag, his computer, and his residence, the
district court should have held a new hearing to determine whether there was probable cause for
the warrants. Mr. Perkins first raised this argument in the brief that his appointed counsel filed
after the hearing on Mr. Perkins’s motions to suppress. The magistrate judge rejected the
argument. Mr. Perkins did not pursue the issue in his objection to the magistrate judge’s report
and recommendation. Consequently, he has waived appellate review of the argument. Fed. R.
Crim. P. 59.
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The photo array that a law enforcement officer presented to the restaurant

manager contained six photos. The photos were of African-American men who

appeared to be roughly the same age and who had similar facial features and

similar hair length. The restaurant manager testified that the officer simply asked

if he recognized anyone on the page; the officer did not indicate that the manager

should choose a particular photo. Mr. Perkins argues that his photograph was

unduly suggestive because he is the only man in the lineup with gold teeth, a

distinguishing feature of his. The magistrate judge found, and the district court

agreed, that this fact alone did not make the lineup unduly suggestive. The district

court did not clearly err in reaching this conclusion.

Moreover, any error arising from the purportedly improper admission of the

out-of-court identification was harmless. The record contains overwhelming

evidence of Mr. Perkins’s guilt. The bag that Mr. Perkins left in the restaurant

contained credit cards in various names and bank documents which bank insiders

gave to Mr. Perkins. When Mr. Perkins returned to the restaurant to ask if he had

left the bag behind, he identified himself as “Daniel Matthews.” When he was

arrested, Mr. Perkins was carrying a Georgia driver’s license in the name of

“Daniel J. Matthews” that bore his picture. Several trial witnesses identified Mr.

Perkins, including the agent who arrested him, an undercover agent, and several

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co-conspirators. In light of this evidence of Mr. Perkins’s guilt, any purported

error concerning the photo array was harmless. Brown, 441 F.3d at 1350. 4

III. CONCLUSION

We find no reversible error in the manner in which the district court

addressed Mr. Perkins’s obstructive tactics, evaluated Mr. Perkins’s competency,

imposed Mr. Perkins’s sentence, resolved the recusal issues in this case, or decided

Mr. Perkins’s motions to suppress. Accordingly, we AFFIRM.

4
Based on this evidence, which we view in the light most favorable to the United States, we
reject Mr. Perkins’s argument that the United States failed to present sufficient evidence to show
that the person described in the indictment was the person on trial. United States v. Boffil-
Rivera, 607 F.3d 736, 740 (11th Cir. 2010). Similarly, we reject Mr. Perkins’s argument
concerning the sufficiency of the evidence relating to his conviction for aggravated identity theft.
The evidence demonstrated that Mr. Perkins stole a woman’s identity and used it to rent the
apartment where he conducted his fraudulent scheme. Mr. Perkins’s co-defendant testified that
the apartment belonged to Mr. Perkins. The woman in whose name the apartment was rented
testified that her name, date of birth, and social security number were accurately written on the
apartment application. Mr. Perkins had to know that she was a real person because the credit and
background checks that the apartment complex ran using the woman’s date of birth and social
security number were successful. United States. v. Holmes, 595 F.3d 1255 (11th Cir. 2010).
Given the sufficiency of the evidence of aggravated identity theft, we affirm the two-level
sentence enhancement for aggravated identity theft.
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