United States v. Markeith Cox

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10340
Non-Argument Calendar
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D.C. Docket No. 1:07-cr-20133-JAL-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARKEITH COX,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 6, 2017)
Before MARCUS, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
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Markeith Cox appeals the revocation of his supervised release. He argues
that the district court abused its discretion by failing to hold a hearing sua sponte to
determine his competency before revoking his supervised release. After careful
review, we affirm.
I.
Cox completed a term of incarceration in October 2010 and began a five
year term of supervised release. Among other conditions of his supervised release,
Cox was required to: participate in a sex offender treatment program, to include
psychological testing and polygraph examination; comply with all sex offender
registration and notification requirements set forth in the Sex Offender Registration
and Notification Act (“SORNA”), 34 U.S.C. § 20901, and state law; and follow the
instructions of the probation officer. Within the next five years, due to numerous
violations of these terms, Cox’s supervised release was revoked four times.
In March 2012, the district court revoked Cox’s supervised release for
failing to, among other things, comply with SORNA’s registration and notification
requirements and timely provide local police and his probation officer with his new
residential address. The district court sentenced Cox to time served and 44 months
of supervised release. In March 2013, the district court again revoked Cox’s
supervised release. Cox had failed once again to comply with SORNA’s
registration and notification requirements and timely provide local police and his
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probation officer with his new residential address. He had also failed to attend his
assigned sex offender treatment program. The district court sentenced Cox to 4
months’ imprisonment and 51 months’ supervised release. In April 2015, the
district court revoked Cox’s supervised release a third time, for violations not
stated in the record. The court sentenced him to 6 months’ imprisonment and 48
months’ supervised release.
Cox’s revocation is at issue in this appeal. In June 2016, the probation
office petitioned the district court for revocation of Cox’s supervised release,
alleging 13 different violations, including: 10 instances of failing to participate in
his sex offender treatment program, one instance of failing to comply with
SORNA’s registration and notification requirements, one instance of failing to
follow the probation officer’s instructions, and one instance of failing to register as
a sex offender as required by Florida law.
The district court conducted a hearing at which Cox admitted all 13
violations. The court then conducted a colloquy to ensure that Cox wished to plead
guilty to violation of the terms of his supervised release. In response to the court’s
questions, Cox affirmed that he was not under the influence of any drug,
medication, or alcohol; had not recently been under the care of a doctor or
psychiatrist; had not recently been hospitalized; understood the rights he was
waiving by pleading guilty; understood the charges against him; and wished to
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plead guilty. Finding Cox fully competent, the district court accepted his plea and
adjudicated him in violation of the terms of his supervised release.
At sentencing, the government moved for an upward variance based on
Cox’s repeated violations of the terms of his supervised release. Cox objected. He
asserted that he sometimes forgot to register when required. He told the court, “I
do forget. It happens. Everybody forgets certain things.” Doc. 96 at 19. And, he
asserted, he was living under a bridge while trying to support a family, all of which
made it difficult to register. Cox also explained that the treatment program put him
in the uncomfortable position of divulging painful aspects of his past, including his
family history of substance abuse and physical abuse. After considering the factors
delineated in 18 U.S.C. § 3553(a),1 the district court granted the government’s
motion for an upward variance and sentenced Cox to 3 years’ imprisonment and 5
years’ supervised release.
This is Cox’s appeal. On appeal, he challenges only the district court’s
failure to order a competency hearing sua sponte in light of his homelessness,
personal history, and forgetfulness.
II.
1
These factors include the nature and circumstances of the offense and history and
characteristics of the defendant; the need for the sentence imposed to afford adequate deterrence
to criminal conduct, to protect the public from further crimes by the defendant, and to provide
the defendant with needed educational or vocational training; and the kinds of sentences
available and established sentencing ranges. See 18 U.S.C. § 3553(a)(1)-(5).
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We review for an abuse of discretion the district court’s decision not to
conduct a competency hearing sua sponte, even when the defendant makes the
challenge for the first time on appeal. United States v. Williams, 468 F.2d 819, 820
(5th Cir. 1972); 2 see United States v. Wingo, 789 F.3d 1226, 1235-36 & n.10 (11th
Cir. 2015) (applying Williams, which construed the former mental incompetency
statute, to the statute now in effect, 18 U.S.C. § 4241).
III.
“[A]t any time after the commencement of probation or supervised release
and prior to the completion of the sentence,” the district court must order a hearing
sua sponte to determine the mental competency of a defendant “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 properly in his defense.” 18 U.S.C. § 4241(a). Failure to do so
presumptively amounts to a due process violation. See Watts v. Singletary, 87 F.3d
1282, 1286 (11th Cir. 1996).
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit issued prior to October 1,
1981.
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Cox asserts that his homelessness, personal history, and repeated violations
due to forgetfulness made it evident to the district court that inquiry into his
competency was warranted. We disagree.
In determining whether the district court should have held a competency
hearing, there are “no fixed or immutable signs,” but “evidence of a defendant’s
irrational behavior, his demeanor at trial, and any prior medical opinion on
competence to stand trial are all relevant.” Drope v. Missouri, 420 U.S. 162, 180
(1975). Ultimately, we “focus[ ] on what the trial court did in light of what it knew
at the time” of the revocation hearing. Tiller v. Esposito, 911 F.2d 575, 576 (11th
Cir. 1990).
Cox seems to acknowledge that the record contains no evidence of irrational
behavior, his demeanor before the district court was not out of the ordinary, and
there was no prior medical opinion suggesting he might be incompetent. Instead,
he takes issue with Drope’s test, asserting that it fails to account for memory or
cognitive deficiencies, especially for someone in his circumstances (i.e., his
homelessness). Even assuming, however, that Cox’s critique of the test is
warranted—and we doubt it is considering that the factors it identified are not
exhaustive—his brief implicitly acknowledges that any evidence of his mental
deficiencies would not have been known to the district court:
If there is a medical explanation for Mr. Cox’s memory impairment,
then [the Drope] test would not catch it. If he behaves irrationally,
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there is no one to testify to it because Mr. Cox is homeless. A
homeless person like Mr. Cox cannot document his day-to-day
behaviors or provide a physician’s opinion but may nonetheless be
impaired.
Appellant’s Brief at 12 (citation omitted). Evidence not known to the district court
cannot factor into our analysis of whether the court should have ordered a hearing.
See Tiller, 911 F.2d at 576.3
Instead, we must focus on what the district court knew. Id. The district
court was aware that Cox came from a family background that was tumultuous at
best, was experiencing homelessness, and was at times forgetful. Although Cox’s
background and homelessness are unfortunate, based on this record cause to
question Cox’s competency was not so evident that the district court abused its
discretion in failing to act on it. Indeed, by Cox’s own testimony, his forgetfulness
was garden-variety. See Doc. 96 at 19 (“I do forget. It happens. Everybody
forgets certain things.”).
For these reasons, we conclude that the district court was within its
discretion not to hold a hearing sua sponte to determine Cox’s competency. The
judgment of the district court is affirmed.
AFFIRMED.
3
We are unpersuaded by Cox’s suggestion that the district court’s comment, devoid of
context, that Cox “is unable . . . to comply with sex offender treatment” indicates that the district
court was aware of the possibility that Cox was suffering from a mental problem that might
render him incompetent. Doc. 96 at 27-28. In context, it is clear that the district court was
referring to Cox’s repeated violations of the same terms of his supervised release, not the cause
for such violations.
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