United States Court of Appeals

For the Eighth Circuit

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No. 19-1938

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Sean Washington, also known as Lil Folk

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the District of Minnesota

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 Submitted: May 15, 2020

Filed: August 4, 2020

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Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges. 

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MELLOY, Circuit Judge.

After the district court1 found Defendant Sean Washington competent to stand

trial, he pleaded guilty to one count of conspiring to distribute cocaine base and

1The Honorable Ann D. Montgomery, United States District Judge for the

District of Minnesota, adopting the Report and Recommendation of the Honorable

David T. Schultz, United States Magistrate Judge for the District of Minnesota. 
heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court imposed a

below-Guidelines-range sentence of 160 months’ imprisonment. On appeal,

Washington challenges the competency determination, the determination of his

advisory Guidelines sentencing range, and the substantive reasonableness of the

ultimate sentence imposed. We affirm. 

I.

Washington has an extensive history of gang violence and drug offenses. This

history includes a murder conviction and several instances of gun violence as a

shooter and a victim. By the time of the events surrounding the current offense,

Washington was using a wheelchair due to spinal injuries from a bullet. In addition,

he was shot in the head in 2009 and still has metal fragments in his head from that

shooting. Shortly after the 2009 shooting, his resulting cognitive impairments were

described as “mild to moderate.”

Authorities conducted a wide-reaching investigation between 2016 and 2017

into a violent gang-related drug distribution conspiracy in Minneapolis. The

investigation included many confidential informants, controlled buys, wiretaps,

search warrants and police-observed drug transactions. Evidence of Washington’s

personal involvement with the conspiracy included wire-tapped phone calls of

Washington receiving orders for drug deliveries or discussing drug supplies, his

direction of drug deliveries, and his participation in drug deliveries. In general the

final or retail element of the conspiracy operated as a sort of dispatch system with a

frequently replaced “dope phone” that would receive orders and direct deliveries. 

Quantities involved during given periods of time were extrapolated from known

quantities of powder or crack cocaine, numbers of calls placed, resulting deliveries,

and known delivery quantities. 

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In February 2017, authorities executed a search warrant at a home Washington

had rented using false employment records. Washington shared the home with the

conspiracy’s ultimate leader. During execution of the warrant, Washington was

present with drugs, cash, scales, and other drug paraphernalia. Washington was

found in bed with his wheelchair positioned next to the bed and with a loaded pistol

located under the wheelchair’s seat cushion. The pistol was positioned so that

Washington could have retrieved it by the grip when sitting in the chair. A shell

casing from the same pistol had been located outside the home of another member of

the conspiracy.

Washington was not taken into custody until later, August 20, 2017, after he

checked into a hospital in Iowa. After being taken into custody, Washington had

interactions with several different judicial officials and his case progressed

substantially prior to any party suggesting a competency exam might be appropriate.

In Iowa, he met with a pretrial services officer and appeared before a federal

magistrate judge. He was informed of his rights and the charges from Minnesota, and

he waived a preliminary hearing and detention hearing. After being transported to

Minnesota, he appeared before a different federal magistrate judge for an initial

appearance on September 19, and was represented by counsel from the office of the

Federal Public Defender. Then, on September 21, at an arraignment and detention

hearing, he was represented by attorney John Hughes who continues to represent him. 

At the hearing, Washington responded to the magistrate judge’s questions and

confirmed he had reviewed his indictment with his attorney. At a November 21

hearing on a motion to suppress, in front of a third federal magistrate judge, counsel

raised the issue of having difficulty obtaining physical therapy for Washington. At

that time, counsel suggested Washington’s memory might be “challenged,” but

counsel did not raise the issue of competency.

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 Then, in December, counsel arranged for a neuropsychological evaluation for

Washington with privately retained psychologist Dr. Norman Cohen. Dr. Cohen met

and evaluated Washington for a day and sent an unsigned report to counsel. In the

report, Dr. Cohen concluded Washington could think logically, but had low

intelligence and thought in a concrete manner with limited sophistication. Dr. Cohen

ultimately considered the testing results he obtained to be valid, but he did not offer

an opinion in terms of Washington’s ability to understand his charges or the

proceedings against him or his ability to communicate with his attorney or assist in

his defense. Rather, Dr. Cohen concluded Washington’s performance was “consistent

with that of a vulnerable adult and [a] guardianship appears appropriate.”

On January 8, 2018, the third magistrate judge issued a report and

recommendation denying Washington’s motion to suppress, and Washington

objected. On January 25, Washington sent a letter to the court withdrawing his

objections and informing the court he had reached a plea agreement. By that time all

conspirators other than Washington and the ultimate leader had pleaded guilty. 

Then, at a February 6 hearing that was scheduled as a change-of-plea hearing,

Washington’s counsel instead moved for a competency hearing. The court ordered

an evaluation. Washington was transferred to a Federal Detention Center in a

different state for approximately forty days for an examination to determine if he was

“presently . . . 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). 

There, psychologist Dr. Cynthia Low served as Washington’s primary

examiner, but he also met with a psychiatrist and another psychologist. Dr. Low had

worked at the Federal Detention Center for over twenty years and had extensive

experience conducting competency evaluations. She conducted several clinical

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interviews with Washington over an extended period of time, conducted tests of

Washington’s abilities, and also administered tests to evaluate whether he was

malingering. In addition, she reviewed his medical and criminal histories and

reviewed recorded phone conversations, texts, and emails he sent to friends and

others while in the examination facility. In a comprehensive report dated April 17,

2018, she concluded unequivocally that Washington was malingering. In fact, Dr.

Low reported that, on certain tests, Washington scored so low that it was nearly

statistically impossible that he had merely gotten answers wrong. He had to have

known the correct answers and purposefully answered incorrectly to achieve such a

low score. She also noted his ability to interact naturally and at a natural pace in

private conversations. Finally, she noted his performance and apparent understanding

in discussions of his charges, the consequences of his charges, and the roles of judges

and attorneys. She ultimately concluded he could adequately understand the charges

and proceedings against him, and “did not suffer from a mental disorder that would

substantially impair his present ability to understand the nature and consequences of

the court proceedings brought against him, or to assist in his defense.”

Washington retained a second psychologist, Dr. John Cronin, who met with

him for approximately one hour and reviewed Dr. Low’s and Dr. Cohen’s reports

prior to sending a report to counsel in May 2018. Dr. Cronin then met with

Washington a second time shortly before Washington’s June 2018 competency

hearing. Dr. Cronin did not address the federal statutory competency standard of 18

U.S.C. § 4241(a), but he did conclude more generally that Washington “lacks many

of the necessary features to be judged as ‘competent’ to stand trial.” Dr. Cronin

criticized Dr. Low’s report but did not tether his criticisms to the federal competency

standards. 

At the competency hearing, the examiners testified in person or remotely, and

Washington did not testify. After the hearing, the magistrate judge prepared a report

and recommendation finding Washington competent to stand trial. In the report, the

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magistrate judge found Dr. Low’s analysis most compelling, the reports of Drs.

Cohen and Cronin “simply lacking,” and Dr. Cronin’s critique of Dr. Low’s report as

suggesting a fundamental “lack of familiarity with the competency standard in federal

court.” 

Washington filed objections, which the district court rejected, and Washington

pleaded guilty, preserving his objections to the competency determination. At his

change-of-plea hearing, Washington testified and interacted with the court. 

Outstanding questions remaining for sentencing included the drug quantity

attributable to Washington for determining a base offense level and the applicability

of a two-level enhancement for possession of the firearm in connection with the drug

offense. At sentencing, the district court found Washington responsible for between

840 grams and 2.8 kilograms of cocaine base and 7 grams of heroin. In addition, the

district court found the firearm enhancement applied. Washington’s advisory

Guidelines range was 168 to 210 months’ imprisonment. Washington sought a

downward departure based on an overstated criminal history, USSG § 4A1.3, his

physical impairments, id. § 5H1.4, and his mental impairments, id. § 5K2.13. He also

asked for a downward variance. The district court imposed a below-range sentence

of 160 months, stating, “I am going to give you a sentence that’s below, slightly

below, the guidelines. It is hard to figure out what you have done to earn that, but I

do think [it] is appropriate.” The district court expressly rejected the § 4A1.3

downward departure request based on criminal history but did not expressly reject the

health-related departure requests. Rather, in the written statement of reasons for the

sentence imposed, the district court characterized the below-range sentence as a

variance rather than a departure. Washington appeals. 

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II.

We review a district court’s competency determination—a detailed and factintensive individualized analysis—for clear error. See United States v. Cook, 356

F.3d 913, 918 (8th Cir. 2004) (“Th[e] competency determination is a factual finding

we affirm unless clearly arbitrary or unwarranted, or clearly erroneous.” (citation

omitted)). As the government concedes, however, we review de novo the underlying

legal question of whether the district court properly apportioned the burden of proof

and applied the correct standard. Here, Washington’s primary argument concerning

competency is a challenge to the district court’s allocation of the burden of proof.

We have repeatedly stated that the burden to prove incompetency to stand trial

rests with the defendant. See, e.g., United States v. Mueller, 661 F.3d 338, 352 (8th

Cir. 2011). Washington nevertheless argues that an open question remains because

a circuit split exists, the Supreme Court itself has not resolved the issue, and our court

previously has noted inconsistencies as to this issue. See United States v.

Whittington, 586 F.3d 613, 617 (8th Cir. 2009) (“This court’s opinions on the issue

are inconsistent.”); id. at 617–18 (collecting and discussing cases). In this instance,

we need not dive more deeply into this question nor comment on the merit of

Washington’s argument. Here, even assuming we have been unclear as to the burden

of proof, this simply is not a case where the burden of proof matters. See Medina v.

California, 505 U.S. 437, 449 (1992) (“[T]he allocation of the burden of proof to the

defendant will affect competency determinations only in a narrow class of cases

where the evidence is in equipoise; that is, where the evidence that a defendant is

competent is just as strong as the evidence that he is incompetent.”); see also

Appellant’s Brief at 9 (“the burden will only be essential to those cases where the

evidence lies in perfect balance”).

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Federal statutes set forth the competency standard as well as procedures

permitted or required for determining competency. See 18 U.S.C. § 4241(d)

(“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”);

id. § 4247(b)–(d) (examinations, reports, and hearings). Here, the district court’s

determination relied heavily on Dr. Low’s extensive and well-supported report. Dr.

Low’s opinions as to Washington’s malingering were well explained and

comprehensive. Her conclusions as to Washington’s abilities relied on a lengthy

period of observation, several substantive tests, and repeated clinical examinations.

Her findings were consistent with Washington’s repeated court appearances without

suggestions of incompetency and his interactions over the phone and electronically

while being observed. In addition, the district court permissibly discounted the much

more cursory reports and opinions from Drs. Cohen and Cronin. In particular, the

district court properly observed that the defense reports did not fully embrace the

applicable standard, and at many points, particularly when critiquing Dr. Low,

seemingly misconstrued the applicable standard and the questions at issue. The

district court’s competency determination enjoys more than ample support, was not

clearly erroneous, and was not sufficiently close to consider the burden of proof a

potential source of error.

Similarly, as to sentencing, we find no error in the district court’s drug quantity

or firearm-related Guidelines determinations. See United States v. RamirezMaldonado, 928 F.3d 702, 708 (8th Cir. 2019) (drug quantity calculations are “factual

determination[s] reviewed for clear error”); United States v. Smith, 656 F.3d 821,

825–26 (8th Cir. 2011) (reviewing for clear error the question of whether a defendant

possessed a firearm in connection with a drug offense). In the context of a

conspiracy, the drug quantity for sentencing purposes includes not only quantities

Washington was personally involved with, but “all quantities of contraband that were

involved in transactions carried out by other participants, if those transactions were

within the scope of, and in furtherance of, the jointly undertaken criminal activity and

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were reasonably foreseeable in connection with that criminal activity.” USSG

§ 1B1.3 cmt. n.3(D). Here, as described, the conspirators operated essentially as a

dispatch system with a centralized handler of a “dope phone” receiving calls for

deliveries and sending conspirators to carry out the deliveries. Washington was not

peripheral to this scheme. He served multiple roles as an armed participant, taking

calls, dispatching couriers, and delivering drugs himself. Further, Washington used

false documents to rent the home where he lived with the conspiracy’s ultimate leader

and where officers found Washington with a firearm and contraband. The scope of

the conspirators’ activities were reasonably foreseeable to Washington, and the

quantities found by the district court are well supported by the record. 

USSG § 2D1.1(b)(1) imposes a two-level increase to the offense level if a

defendant possessed a firearm. Commentary to that subsection provides: “The

enhancement should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” Id. cmt. n.11(A). Here,

the proximity of the firearm to Washington and contraband at the time it was

discovered support the district court’s finding. See United States v. Anderson, 618

F.3d 873, 881 (8th Cir. 2010) (“We have . . . recognized that a well-known tendency

of drug criminals to use firearms in connection with their drug activities supports an

inference that a gun at a location near the drug activity was somehow connected to

it.”). Although Washington argues someone else might have surreptitiously placed

the firearm in his wheelchair, his speculation in this regard discounts the fact that the

firearm was positioned to be retrieved by the chair’s occupant. The district court’s

firearm determination was not clearly erroneous.

Finally, we find no abuse of discretion in the ultimate sentence imposed. See

United States v. Roberts, 747 F.3d 990, 992 (8th Cir. 2014). “We have declared it

‘nearly inconceivable’ to imagine a case where the district court imposed a

below-Guidelines sentence and ‘abused its discretion in not varying downward still

further.’” United States v. Madison, 863 F.3d 1001, 1007 (quoting United States v.

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Lazarski, 560 F.3d 731, 733 (8th Cir. 2009)). Here, the most fair reading of the

record shows that the court, when imposing sentence, placed considerable weight on

Washington’s role in the conspiracy and his physical and mental health limitations. 

The district court was entitled to do so. Roberts, 747 F.3d at 992 (“[A] sentencing

court has wide latitude to weigh the section 3553(a) factors in each case and assign

some factors greater weight than others.” (quoting United States v. Lozoya, 623 F.3d

624, 627 (8th Cir. 2010))). In fact, the court did not express doubt or concern that the

downward variance failed to go lower. Rather, if anything, the court expressed doubt

as to the wisdom of varying downward at all. We find no abuse of discretion. 

III.

We affirm the judgment of the district court.

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