[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 02, 2007
No. 06-14664 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00063-CR-KOB-TMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYAN WILLIAM HOOBLER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(November 2, 2007)
Before BIRCH, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Bryan William Hoobler appeals his conviction, following his guilty plea, to
one count of conspiracy to manufacture 50 grams of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and one count of
manufacturing 5 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(B). We affirm.
I. BACKGROUND
On March 27, 2002, local law enforcement officers in Walker County,
Alabama, were serving an unrelated arrest warrant, when they discovered Hoobler
and three other individuals engaged in methamphetamine production. They were
using a method of methamphetamine production known as the anhydrous ammonia
method, which routinely yields fifty grams or more of methamphetamine for each
production or cooking. Hoobler assisted in providing the anhydrous ammonia.
After an indictment issued charging the four defendants with conspiracy to
manufacture, distribute, and possess with the intent to distribute 50 grams or more
of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), Hoobler’s
counsel filed a motion for a psychiatric examination. Because Hoobler had
suffered a severe accident that required a metal plate to be inserted in the back of
his neck and skull, which had left him allegedly disabled, his counsel asked the
court for a psychiatric evaluation to determine whether Hoobler had sufficient
mental competence to understand the charges and proceedings against him and
2
whether he was able to aid in his defense. The magistrate judge granted Hoobler’s
motion and ordered that he be evaluated to determine whether he was competent to
stand trial and the extent to which his mental illness may have affected his
behavior at the time of the offense.
Hoobler was referred to the Federal Medical Center (“FMC”) in Lexington,
Kentucky, where he was evaluated from May 27, 2005, until July 26, 2005.
Although Hoobler had suffered from a history of depression, suicidal tendencies,
and substance abuse, the evaluating psychologists found him to be alert, attentive,
and cooperative. During his stay, Hoobler displayed no behavior management
problems and had no problems understanding or following directions from the
correctional staff. He participated in a number of psychological tests. A test of his
cognitive functioning indicated that he had a full-scale intelligence quotient of 78,
indicating borderline or low average intellectual ability. Hoobler showed no
deficiencies in memory relative that to his overall intellectual functioning. He did
not exhibit symptoms of a severe or persistent mental illness; his thought process
was coherent, well-organized, and goal-directed; and he did not evidence severe
cognitive impairment in interactions with the examiner or others during the course
of his evaluation at FMC.
Regarding the charges against him, Hoobler was able to explain the crimes
3
with which he had been charged, recount meetings with his counsel, and explain
the roles of his counsel, the prosecuting attorney, judge, and jury. The evaluators
found that he described the acts constituting his alleged offense in a rational and
reality-based manner and that he indicated that he would be able to provide this
same information to his attorney. Hoobler was aware that he faced an
imprisonment sentence of ten years if convicted. He expressed no indication of
confusion, disorientation, or perceptual distortion concerning his legal situation.
The evaluating psychologists concluded that Hoobler was not suffering from a
mental disease or defect that would render him mentally incompetent to understand
the nature and consequences of the proceedings against him or to assist in his
defense. Accordingly, Hoobler was determined to be competent to stand trial by
the FMC evaluators.
A magistrate judge conducted a hearing on Hoobler’s competency to stand
trial and accepted into evidence the FMC psychological evaluation. Hoobler
testified that he did not recall an instance in which he had called his attorney, asked
a question, and was given an answer. He also did not remember anything about
being arrested at a meth lab. During cross-examination, however, Hoobler
admitted that he knew that the purpose of the hearing was for the judge to
determine whether he was competent to stand trial.
4
The magistrate judge issued a report and recommendation, wherein he noted
that Hoobler’s psychological evaluators had reported him to be “alert, attentive,
and cooperative,” with “no problems understanding directions.” R1-72 at 2. The
magistrate judge found that the report confirmed that Hoobler had trouble
remembering specific dates and details, but that he had “a factual and rational
understanding of the charges and proceedings against him, and [wa]s able to recall
events relevant to the proceedings.” Id. at 3. The magistrate judge explained that
Hoobler’s “combination of his memory deficits, his drug dependence, and his
depression and anxiety ma[d]e for a very difficult set of defense circumstances,
[but] they d[id] not rise to the level of incompetence to stand trial.” Id. at 5. He
concluded that Hoobler “evidenced a rational understanding of the proceedings
against him and c[ould] consult with his lawyer regarding certain events relevant to
the charge.” Id. at 5. Accordingly, the magistrate judge recommended that
Hoobler be found competent to stand trial.
Hoobler’s counsel appealed the magistrate judge’s competency
determination to the district judge and moved for an independent psychiatric
evaluation. He alleged that Hoobler probably sustained brain damage from his
accident and requested that, in the interest of justice, the court approve expenses
for Hoobler to obtain an independent psychiatric evaluation. Hoobler’s counsel
5
recommended Dr. Gagan Dhaliwal, with whom the counsel had prior experience,
and asked the judge to approve payment for Dr. Dhaliwal’s evaluation.
The district judge denied Hoobler’s motion for an independent psychiatric
evaluation and overruled his appeal of the magistrate judge’s report and
recommendation. After conducting an independent review of the record, the
district judge adopted the magistrate judge’s competency finding and ruled that
Hoobler was competent to stand trial. The district judge denied Hoobler’s motion
for a second court-provided psychiatric evaluation and ruled that the FMC report
“reflect[ed] a thorough investigation” and that Hoobler should have requested a
defense expert before the competency hearing if he had desired one. R1-85 at 2.
The judge explained that “[t]o grant the motion now would require further delays
in the case for yet another examination, an opportunity for the Government to rebut
any report, and a new competency hearing.” Id.
Hoobler filed a notice of interlocutory appeal and argued that the district
judge’s order adopting the magistrate judge’s competency finding and denying his
motion for an independent evaluation was a final judgment that had to be appealed
prior to trial. We held that the district judge’s order finding Hoobler competent to
stand trial was not final and appealable and dismissed Hoobler’s appeal.
Hoobler’s counsel then moved for a new hearing regarding his competency,
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because, since the prior hearing, Hoobler had been evaluated by Dr. Dhaliwal, the
forensic psychiatrist who had been requested previously at court expense; a copy
of his report was attached to the motion. Dr. Dhaliwal reported that he had
evaluated Hoobler on January 31, 2006, for one hour and forty-five minutes, and
that it was his opinion that Hoobler did not have the ability to assist his counsel
and, consequently, he was not able to proceed with his trial. Dr. Dhaliwal found
Hoobler alert but uncertain of the charges against him, and he stated that his
mother handled the legal issues, apparently with his counsel. Dr. Dhaliwal
reported that Hoobler stated that he did nothing wrong, that he did not know the
consequences of the legal charges against him, and that he did not know what plea
he had entered. Nonetheless, he knew the name of his defense attorney. Dr.
Dhaliwal concluded that Hoobler did not have the ability to assist his counsel and,
therefore, he was unable to proceed with his trial.
The magistrate judge provided a second report and recommendation and
determined that Dr. Dhaliwal’s letter did not raise sufficient new evidence about
Hoobler’s condition to merit another competency hearing because it did not
indicate that Hoobler “suffer[ed] from any mental illness that prevent[ed] [him]
from understanding the nature of the proceedings against him and from assisting
his lawyer within the limits of his memory loss.” R1-104 at 6. The magistrate
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judge concluded that “memory loss alone (or, at least as portrayed in this
defendant) is not enough to cause [him] to be deemed incompetent to stand trial,”
id., and that “[i]nability to remember the events underlying a criminal charge
simply does not equate to incompetence to stand trial,” id. at 7. Therefore, the
magistrate judge recommended denying Hoobler’s motion for a second
competency hearing.
Hoobler’s counsel objected to the magistrate judge’s second report and
recommendation. He argued that the magistrate judge misinterpreted Dr.
Dhaliwal’s letter and that the doctor had found that a mental illness prohibited
Hoobler from understanding the nature of the proceedings against him and
assisting his lawyer in his defense. He further argued that the FMC report did not
include the qualifications of the examiners, and he provided the qualifications of
Dr. Dhaliwal.
The district judge accepted the magistrate judge’s second report and
recommendation and denied Hoobler’s motion for another competency hearing.
The district judge found that the FMC report was prepared by Dr. Campbell, who
had a Ph.D. in forensic psychology, and that Dr. Dhaliwal was an M.D. without
any listed experience in clinical practice since 2000. The district judge noted that
Dr. Dhaliwal “expressed legal, not factual conclusions, and the facts contained in
8
his report did not support his legal conclusion.” R1-106 at 1-2. The district judge
reiterated the magistrate judge’s finding that memory loss alone could not be
equated with incompetency and determined that “the factual statements in Dr.
Dhaliwal’s report d[id] not support a finding of incompetency to stand trial.” Id. at
2. The district judge ruled that Hoobler had failed to offer new evidence of mental
illness that would prevent him from understanding the nature of the proceedings
against him and noted that Dr. Dhaliwal’s report would not have changed the
ruling if it had been offered before the initial competency hearing.
Thereafter, Hoobler entered into a plea agreement with the government,
whereby he agreed to plead guilty to both counts for which he was charged in the
superceding indictment. The plea agreement contained a provision, highlighted in
bold print, in which Hoobler agreed to “waive[ ] his right to appeal his conviction
and sentence, on both direct and collateral appeal, so long as that sentence is within
the advisory guideline range, as that range is determined by the Court.” R1-106 at
5. Another provision stated that Hoobler was aware of the charges, the elements of
each count, and had discussed the charges and possible defenses with his counsel.
Hoobler verified that he was pleading guilty because he was guilty. The plea
agreement contained another bold-type provision in which Hoobler waived his
right to appeal his conviction and his sentence by direct or collateral appeal,
9
subject to an exception for “[a]ny punishment that constitutes an upward departure
from the advisory guideline sentencing range, as that range is determined by the
court at the time sentence is imposed.” Id. at 8-9.
At his change-of-plea proceeding, Hoobler stated that he took medication,
but that it did not affect his ability to understand and respond to the judge’s
questions. The district judge asked Hoobler to interrupt the proceedings if at any
point he did not understand what was occurring and told him that, if he did not
interrupt, then the judge would presume that he comprehended the hearing.
Hoobler informed the judge that he understood the terms of his plea agreement
when he signed it. His counsel told the judge that he and Hoobler had sufficiently
discussed the plea agreement and that his counsel was able to answer satisfactorily
all of Hoobler’s questions. Hoobler verified that he had a sufficient opportunity to
discuss the agreement with his counsel and that his counsel had answered all of his
questions to his satisfaction. He responded that he understood specific provisions
in the plea agreement, including the appeal waiver; the government’s discretion to
file for a downward departure based on substantial assistance; the advisory nature
of the Sentencing Guidelines; his sentence could be based on the agreed facts; the
agreement was not binding upon the court; and he would be unable to revoke his
plea if the judge sentenced him to a term of imprisonment beyond that
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recommended by the government. Hoobler stated that he had not been promised
anything or threatened to procure his guilty plea and that, if he pled guilty, then the
only remaining proceeding was his sentencing.
The district judge explained the maximum penalties associated with the
charges. Hoobler confirmed that his counsel clearly had explained the maximum
penalties and that he understood them; the mandatory minimum sentences that he
faced; his sentence would be determined with reference to the advisory Sentencing
Guidelines; and his actual sentence could differ from the Sentencing Guidelines
range. Hoobler informed the judge that he understood that he could enter a plea of
not guilty, whereby the government would have to prove his guilt to a jury beyond
a reasonable doubt, and that he would have the rights to the assistance of counsel,
to confront witnesses, and to not bear witness against himself. He further stated
that he understood he would be relinquishing those rights if he pled guilty.
Hoobler stated that nothing prevented him at that time from understanding what
the judge was saying to him, discussions with his counsel, the nature of the charges
that he faced, or the purpose of the change-of-plea proceeding. Not only did
Hoobler state that he understood the charges and the elements that the government
was required to prove, but also he testified that he had discussed the charges with
his counsel and that he was satisfied with his counsel’s representation. Hoobler’s
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counsel stated that he felt Hoobler understood the charges against him and that he
was knowingly and voluntarily entering his guilty plea.
The government read a statement of the facts that it would prove if the case
went to trial, and Hoobler acknowledged that the statement was substantially
correct. Hoobler admitted that he participated in the manufacture of
methamphetamine and that he desired to plead guilty to the charges. The district
judge reminded Hoobler that he was not required to plead guilty and that this
would be his last chance to change his plea. Hoobler stated that he did not wish to
reconsider his plea and that he still desired to plead guilty. Hoobler pled guilty to
both charges in the superceding indictment. The judge found that Hoobler’s plea
was given competently, freely, voluntarily, and knowingly and was supported by
the requisite factual basis.
The probation officer prepared Hoobler’s presentence investigation report
(“PSI”), which showed a Sentencing Guidelines range of 168 to 210 months of
imprisonment. The government filed a motion for consideration of Hoobler’s
substantial assistance and recommended a downward departure from the
Guidelines range for Hoobler’s assistance in providing information concerning his
drug trafficking activities and those of his codefendants. The government
recognized that Hoobler’s willingness to testify against his codefendants likely
12
caused one of his codefendants to plead guilty. Hoobler also supplied the
government with information that corroborated the identities of others involved in
the methamphetamine trade in and around Walker County.
The district judge sentenced Hoobler to 96 months of imprisonment.
Hoobler filed a notice of appeal in which he argues that the district judge erred by
finding him competent and accepting his plea. The government filed a motion to
dismiss the appeal, in which it argued that the appeal-waiver provision of
Hoobler’s plea agreement prohibited him from raising any issues on appeal. We
ordered that the government’s motion be carried with the case.
II. DISCUSSION
A. Government’s Motion
The government seeks to enforce the plea-agreement provision whereby
Hoobler agreed to waive his right to appeal his conviction and sentence. Hoobler
does not attack his sentence; instead, his only issue on appeal is whether he was
competent to plead guilty. Generally, a defendant who pleads guilty is precluded
from challenging his conviction on appeal, except on the ground that the plea was
involuntary. United States v. Kaiser, 893 F.2d 1300, 1302 (11th Cir. 1990). Like a
guilty plea, an appeal-waiver provision must be made knowingly and voluntarily to
be effective. United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993).
13
Because a defendant can always appeal his decision to plead guilty on the ground
that he did so involuntarily, he also can appeal whether he was competent to enter
into a plea agreement whereby he relinquished his right to appeal his conviction.
See Godinez v. Moran, 509 U.S. 389, 400 n.11, 113 S.Ct. 2680, 2687 n.11 (1993)
(noting “that the prohibition against the trial of incompetent defendants dates back
at least to the time of Blackstone”). Therefore, the government’s motion to dismiss
the appeal is denied, and we proceed to the merits of Hoobler’s appeal.
B. Competency to Enter into the Plea Agreement
On appeal, Hoobler argues that a finding of competency is essential before a
criminal defendant may enter into a plea agreement or change his plea to guilty.
He notes that the prosecution and defense experts held differing opinions with
regard to Hoobler’s competency at the time of his crimes and during court
proceedings. Hoobler contends that, because he was unable to aid in his defense,
the district court violated his Due Process rights by allowing him to plead guilty.
We review a district judge’s decision on a defendant’s competency to stand
trial for clear error. United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir.
2006) (per curiam) (citing United States v. Hogan, 986 F.2d 1364, 1371 (11th Cir.
1993)). A district judge makes a clearly erroneous finding of fact when that
finding leaves us “‘with a definite and firm conviction that a mistake has been
14
committed.’” Hogan, 986 F.2d at 1372 (citation omitted). A judge cannot clearly
err when deciding between two permissible views of the evidence. Izquierdo, 448
F.3d at 1278. “The standard for competency to stand trial is whether the defendant
‘has sufficient present ability to consult with his lawyer with a reasonable degree
of rational understanding–and whether he has a rational as well as factual
understanding of the proceedings against him.’” Hogan, 986 F.2d at 1371 (quoting
Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789 (1960)). This same
competency standard applies to a defendant who wishes to plead guilty rather than
stand trial.1 Godinez, 509 U.S. at 396-99, 113 S.Ct. at 2685-86.
The record reveals that the district judge did not clearly err by finding that
Hoobler was competent to enter a plea of guilty. To reach her conclusion, the
judge relied on the report authored by the FMC psychologists, who studied
Hoobler as an inpatient for two months. The report found that, although Hoobler
had borderline intelligence and some deterioration of his memory, he understood
the nature of the charges that he faced and the potential consequences; could
provide his attorney with knowledge of the facts supporting the alleged offense;
1
Hoobler argues that the question before the district judge was whether he was
competent at the time of his crimes. By pleading guilty, however, Hoobler waived all non-
jurisdictional defenses, including his mental competence at the time of his commission of the
crimes with which he was charged. Speed v. United States, 441 F.2d 1106, 1107 (5th Cir. 1971)
(per curiam).
15
and had an understanding of his impending legal proceedings. The report
concluded that Hoobler was not then suffering from a mental disease or defect that
rendered him mentally incompetent to understand the nature and consequences of
the proceedings against him or to assist in his defense and that Hoobler was
competent to stand trial. The district judge could rely on this assessment and
discount the report supplied by Dr. Dhaliwal, a psychiatrist retained by Hoobler,
who had examined him for less than two hours before arriving at a largely
unsubstantiated finding that Hoobler was incompetent to proceed. Furthermore,
the judge also could rely on observations of Hoobler at the competency hearing
and at the change-of-plea-hearing, where he demonstrated his understanding of the
legal proceedings and potential consequences of a conviction. Additionally, the
judge’s competency finding was buttressed by the government’s motion at
sentencing for the court to consider Hoobler’s substantial assistance in providing
truthful and reliable information about the drug trafficking activities of his
codefendants and throughout Walker County, Alabama. Consequently, the district
judge did not clearly err by finding Hoobler competent to enter a guilty plea.
Hoobler does not argue precisely that his guilty plea was offered without a
knowing and voluntary waiver of his trial rights, but he does question whether his
competency allowed him to understand the nature of his decision to plead guilty.
16
The Supreme Court has recognized a “two-part inquiry,” which requires that a trial
judge determine first whether a defendant is competent and then ensure that the
defendant who wishes to plead guilty makes a knowing and voluntary waiver of his
trial rights. Godinez, 509 U.S. at 401, 113 S.Ct. 2688. While the focus of the trial
judge’s competency inquiry is whether the defendant “has the ability to understand
the proceedings,” “[t]he purpose of the ‘knowing and voluntary’ inquiry . . . is to
determine whether the defendant actually does understand the significance and
consequences of a particular decision.” Id. at 401 n.12, 113 S.Ct. 2687 n.12.
Therefore, Hoobler’s argument encompasses both his capacity to plead guilty and
whether he waived his trial rights knowingly and voluntarily.
Because a guilty plea involves the waiver of a number of a defendant’s
constitutional rights, due process requires that a defendant make his plea
knowingly and voluntarily. United States v. Moriarty, 429 F.3d 1012, 1019 (11th
Cir. 2005) (per curiam). Ordinarily, we will review de novo whether a guilty plea
was entered knowingly and voluntarily. Allen v. Thomas, 161 F.3d 667, 670 (11th
Cir. 1998). Nonetheless, where the defendant does not object to an alleged
violation of Federal Rule of Criminal Procedure 11 before the trial judge, as
Hoobler failed to do, we can review only the plea circumstances for plain error.
Moriarty, 429 F.3d at 1018. Under a plain error standard of review, if a defendant
17
can establish that there is error, that is plain, and which affects his substantial
rights, then we have the discretion to recognize that forfeited error, but only if the
error “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. at 1019. When accepting a guilty plea, a judge must comply
with the requirements of Rule 11 and must “specifically address three ‘core
principles,’ ensuring that the defendant (1) enters his guilty plea free from
coercion, (2) understands the nature of the charges, and (3) understands the
consequences of his plea.” Id.
The district judge did not plainly err by accepting Hoobler’s guilty plea as
voluntary, knowing, and intelligent because Hoobler’s plea colloquy met the three
core objectives of Rule 11. Aware that Hoobler’s competency previously had been
raised as an issue, the judge proceeded cautiously through the change-of-plea
proceeding to ensure that Hoobler understood the charges that he faced, the rights
that he would waive by pleading guilty, and the sentencing consequences of his
plea. Hoobler told the judge that no mental impairment affected his ability to
understand the judge’s questions as well as understand the advice of his counsel,
and he stated that he had not been forced to plead guilty. Throughout the hearing,
he answered that he understood the terms of the plea agreement that he had signed,
the judge’s explanations of the charges that he faced, the maximum punishments
18
for those crimes, how his sentence would be determined, and the rights that he
would forego by pleading guilty. Hoobler’s counsel acknowledged that Hoobler
was pleading guilty knowingly and voluntarily. Hoobler agreed with the accuracy
of the government’s statement of the facts that it would prove if the case had gone
to trial, admitted that he had manufactured methamphetamine, and pled guilty.
Our review of Hoobler’s change-of-plea proceeding shows that he competently,
knowingly, and voluntarily entered his guilty plea.2
III. CONCLUSION
Following his guilty plea to conspiracy to manufacture of 50 grams of
methamphetamine and manufacturing 5 grams of methamphetamine in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846, Hoobler appeals as error the district
judge’s finding him competent and accepting his guilty plea pursuant to a plea
agreement with the government. As we have explained, Hoobler entered his guilty
plea competently, knowingly, and voluntarily. Accordingly, the government’s
motion to dismiss his appeal is DENIED, and the district judge’s final
determination that Hoobler was competent to enter into a plea agreement with the
2
Hoobler argues that the district judge erred by denying his request for another
evaluation by an independent psychiatrist. We review the district judge’s decision for abuse of
discretion. United States v. Nickels, 324 F.3d 1250, 1251-52 (11th Cir. 2003) (per curiam). A
credible two-month study already had found Hoobler competent; the judge held a competency
hearing and made the same determination. Additionally, Hoobler had provided a contradictory
report from an expert that he had hired, which the judge considered even after the hearing.
Therefore, the district judge acted within her discretion to prevent further delays in this case.
19
government and to plead guilty is AFFIRMED.
20