to just that lectern if you want the last time i just did this judge bright told me i'm a big man and i'm and he's an old man and i need to speak up well that always helps maybe see my name is david smell like i represent deon bailey mr bailey pled guilty to two lesser included offenses of distribution of cocaine base in violation of twenty one u s c eight forty one a sub one and eight forty one b sub one subsea in the northern district of iowa before the honorable linda are read these were lesser included offens distribution near orange park and to be you iowa a violation of twenty one u s c eight sixty that was eliminated from his plea agreement pursuant pursuant to a plea agreement with the court's permission i would like to dedicate the majority of my time to defendants paid challenge and the district courts failure to take up his competency sue a sponsor in short the court's dismissal of defendant's pro se requests for an evaluation coupled with his pronounced irrational behavior is demonstrated in numerous prolific rambling nonsensical and pro se pleadings was a denial of defendants due process right to a fair trial and a statutory violation of eighteen u s c forty two forty one underpaid and this court's ruling in de the issue before the court wasn't whether the court abused its discretion to deem the defendant alert enough to plead guilty as the alleges it was whether the court failed to order a constitutionally compelled hearing it did so fail all the court needed to be convinced of was reasonable cause to believe the defendant may be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he was unable to understand the nature and consequences of the proceedings against him or to assess properly in his defense the evidence of defendant's pronounced irrational behavior was substantial to trigger the court's duty to hold a bonafide hearing on competency well what detracts from that is the  that from her observations but also from his defense lawyer who said i didn't notice anything that he was incompetent that's pretty strong evidence that the court observing that but also the the lawyer saying that so why isn't that enough the least give substantial evidence to support the district judge's opinion not to have a hearing well it does not controvert the evidence that is in the record that the defendant himself submitted in these pro se pleadings but i will grant you that mr sheets is a fine lawyer and that is what the court so found the court said i'm not asking you mr bailey whether or not you're satisfied with mr she services because i think he's not a fine lawyer he is but we are doctors of law we are not doctors and in pate i believe it was justice clarke who wrote because there was a similar argument advanced in that case that the and there was a jury trial in that case i believe that the colloquy or the interaction between the trial judge and the defendant appeared to show on its face on the surface that the defendant was mentally alert enough to participate in his defense and i would assert that it did not square with his pro se pleadings as well as his pro se requests for a mental health evaluation during or before i believe during and after his plea taking in fact the defendant said i just want to mental health evaluation in repeatedly had said i believe that he that his brain hurt and he just wanted to make sure he was making the right decision hurts you make these comments which i don't think she believed is true there's a credibility issue here but why is is there is that an issue of failure proof you just can't commit and say i want to hear i understood your honor but there isn't i would assert respectfully that there is not a failure of proof based on the just reading docket sixty eight is a summary of the seventy nonsensical concept sort of non sequiturs that the defendant engaged in throughout his the litigation pro se not participating in his own defense after being told not to do it by i believe both judge scholes and judge  read that he cannot file pro se pleadings without participating with his own lawyer that though that the attorney is the one to file pleadings he repeatedly filed these pleadings if that is not substantial evidence of a failure to understand the nature and consequences of the proceedings against him i don't know what it was my limited experience this is not unique unfriended to do this i don't know what the percentage is but quite a few of  do exactly what happened here understood your honor what is unique is that the defendant but the public defender in this particular case moved to a draw early citing the defendant's failure to cooperate with his own defense when the court relented and appointed substitute counsel mr sheets heat these pleadings denied he was the straw man of the construct a nonsensical non sequitur demanded proof of the posting of the hazard bond requested that the court correct all public records with his new name anthony of the bailey family with the suffix added elbow and the district court itself in docket sixty eight  dismissed his requests to reveal conspiracies deception exploitation his discussion of tribes he had indicated that he was from the tribe of the moabites and that mr sheets was from the tribe of benjamin and that the two apparently what i interpreted from that is that the two of them their mute their respective tribes had suffered a long time are a bit centuries old biblical  feud he had counsel i guess i would agree with joe dryly i'm coming from the district court but i've been there on a long time but that doesn't sound out of the ordinary to me i mean are you saying every time we receive a pro se pleading like that we the court should call into question the mental competency of i mean our i will tell you like judge riley i see those i saw some this morning understood your honor the what makes this unique is that the the back and forth there was a dichotomous choice that the defendant had to make in this particular case whether to plead guilty and seek a there was the way i interpreted the pleat in the plea taking that the court said you can have a mental health evaluation as part of either bureau of prisons programming or as part of the sentencing as part of mitigation we can do that i believe is the way the court phrase that we can do that but then later said well look the defendant had asked for a bureau of prisons programming or a mental health evaluation and that is not how i interpreted his request i interpreted his request as being a request for a mental health evaluation to determine whether he was competent so the pleat the the prolific and nonsensical please plus the defendant's request for a mental health evaluation plus the court's failure to recognize those think two things together and th with a drug task force officer where the defendant was trying to basically sell his services and get it appeared to me that he was trying to get out of jail that was the general drift that he had value on the street and he repeatedly said well i'm worth thousands of i sell thousands of dollars i believe he said he could sell three thousand dollars and the interrogator pressed him and said really can you do that and he kept down grading the amount that he could sell and he alternately said he could sell to four customers on the street and he estimated that that would be six hundred to seven hundred dollars a week or excuse me six hundred to seven hundred dollars a day i believe and the court or the the p s r wrote that he would do that every day and that that amounted to eight hundred forty i see here on out of time that that was eight hundred forty grams and we would argue that that was that was an exaggerated claim thank you thank you was competent to plead guilty second whether the district court it clearly erred in calculating the drug quantity and then two other sentencing issues whether the district court erred in finding the defendant was a clear offender the complicated mathes type issues and then whether the sentence was substantively unreasonable the amount of that's an issue of fact right it is reviewed for clear error your honor and one of the other i will also tend to focus on the competency issue unless there are any specific questions about sense things one of the things that we note in our brief is with respect to the sentencing issues is there's two levels of harmless they are working against the defendant in this case the first is that this is an unusual case where apart from the career offender finding which usually drives the guidelines here the defendant's quantity if the court does not reverse for clear on drug quantity and the defendant's criminal history category are right at the same numbers and so the guideline range is the same the second level of harmless error that drug that the defendant has hurdle that the defendant has to overcome is this is a case like the previous case where the judge  did indicate that if we're guideline findings were wrong in any way she would impose the exact same sentence using the discretion that she has afforded under eighteen u s c thirty five fifty three and she gave very detailed reasons for that in this case with respect to competency it is important to focus on the legal standard and that is did the defendant understand the charges did the defendant therefore have the ability to consult with a lawyer namely mr sheets here and did he have a rational and factual understanding of the proceedings the cases teaches there are no bright line rules but some of the things the court can look at are did the defendant display irrational behavior did he have a demeanor indicating he didn't understand what was going on and then also the court should take into account trial counsel's opinion at the police taking the danger here in the appellants it is that we conflate the fact that the defendant hold certain apparently hold certain or spouses certain legal beliefs that no lawyer or a judge in this courtroom would ever put  a pleading or in an order and conflate those beliefs that he may have with the question the narrow question of legal competency many people hold beliefs that are not true and that does not mean they would not be competent to plead guilty or not as judge rossiter indicated you know in the district court these are not uncommon and there are other things one can imagine you know one can imagine someone today believing the earth is flat or that if there is a lochness monster but that doesn't mean that when they're in a courtroom they don't understand the proceedings and aren't competent to plead guilty and the government was unable to find any case that held that all of these sovereign citizen type individuals are per se incompetent nor that people who may have suffered from depression anxiety or bipolar as i'm many defendants come to the court  what mental health issues how did it happen i don't remember that did read found out that mr sheets thought that didn't see the incompetence if there wasn't a hearing did he just speak up in the courtroom or how did that come about what happened here and in this case there was right prior to when the trial was scheduled to commence actually was the day that was supposed to be of the trial but the judge moved it one more day because the defendant indicated he wanted to plead guilty and he'd given notice there was a two hour hearing and there is a transcript in the record on that date of a plea hearing eighty one pages long it went on for two hours and at that hearing as is common the judge asked the defense attorney mr sheets if he had any concerns about the defendant's competency  and mr sheets who as the court indicated when he was arguing here today is quite experienced and that's actually in the record when he moved to have mr sheets removed there is a  record made of mr shaw that mr cheat sheets was chosen specially for this case due to his experience after the federal public defender had withdrawn but when asked by the district court the mr she said he had met with the defendant quote many many many times for long periods of time and never had concerns about his ability to understand the proceedings it was mr she's professional opinion that the defendant was quote scared and quote and that's about page thirty two aired scared as many defendants are as the judge remarked at the police hearing it is a momentous occasion when you are going to plead guilty to t federal drug trafficking crimes that carry serious serious penalties in addition to mr sheets the court here indicated that in her opinion spending two hours with this defendant that he was competent and understood what was going on that was a finding the court made and the judge said at page thirty four of the transcript the defendant asked quote exceptionally good questions and quote this was not idle hyperbole by the district court judge as we have outlined in our brief on pages twenty six and twenty seven there were about sixteen questions that the defendant asked during the course of this hearing before he ultimately pled guilty were there any prior convictions of this individual had he been up this road before i've forgotten the twenty five bruce that i read for this week yes your honor absolutely and i have his pre sentence report in front of me that would be paragraphs six on going to paragraph forty four of the p s r so we have about eighteen prior convictions he scored as indicated before basically at the career offender level even if you take away the career offender doctrine he was criminal history category six this was not his first rodeo have these have had he pled to any of these priors to specifically noted differences between whether there was a trial or a or a plea when i was reviewing this last night and going through this transcript again  they really were as a district court indicate exceptionally good questions he went so far as to ask you know about the sensing guidelines whether he be at level thirty two and the judge indicated what we don't know for certain  then he asked he asked for example he didn't use the phrase ruhleben c one c but he says you know he said judge words to the effect of judge we you know it's my understanding you don't generally it's not your practice to take binding plea agreements i just wanted to make sure that's not an option and she indicated you're right on and that's not going to be an option here at the end of the day the takeaway in the government's view is that defendant this was a difficult individual may have been difficult to deal with may have held an orthodox views about jurisdiction unpopular views wrong views but that doesn't necessarily translate into competency specially when we have the three big things we have mr sheets is representation on the record we have the judges finding after an extensive hearing and then we have the defendant's own words i mean he said here  i am guilty just being i believe you asked the palace counsel whether he was also seeking reversal or withdrawal of the plea he had moved to withdraw his plea in the district court as i read the appellant's brief we brief that issue but as i read the appellant's brief it was simply whether the court should have had a competency hearing the relief with regard to exceptionally good question one of those questions that the government did not mention was whether it would be perjury to plead guilty if somebody else committed the crime and whether or not the court had heard from someone named junior who later file an affidavit that he had committed the offense a gentleman by the name of louis altman jr which isn't exactly the issue that's before the court but it certainly contributes if it's a good question then we also have to say that's a good question whether or not it is perjury to plead guilty to something that you didn't commit with regard to whether or not there is substantial evidence in the record and whether or not these are merely unorthodox views by the time we get to the hearing on  motion withdraw the guilty plea the court now has the p s r which has multiple diagnoses multiple prescriptions and in fact the court thought it important enough to look up one of those medications on the internet so telegram that is not a proxy for  medical evaluation or a competency hearing thank you and thank you both for your arguments today and thank you for calming the law and evolving it's good to see you here my last week thanks for coming over and that will take it under