# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________** No. 22

- 50987

**____________ United States of America,**  Plaintiff

— Appellee **,**

versus **Thomas Scott Perkins,** Defendant

— Appellant

**.**

**______________________________** Appeal from the United States District Court for the Western District of Texas USDC No. 4:20

- CR

- 388

- 1

**______________________________** Before **Higginbotham ,**  **Smith ,**  and **Higginson ,**  Circuit Judges

**. Jerry E. Smith**  , Circuit Judge **:** Thomas Perkins was convicted of one count of distributi ng child pornography in violation of 18 U.S.C. § 2252A(a)(2) and eight counts of pos

sess ing devices containing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Perkins has unde n iabl e mental issues, but the district
court determined him competent to stand trial. H e was convicted and sen
tenced to more than 157 years

— a substantial upward variance from the g uideline range. Perkins appeals , challenging (1) the competency determination and United States Court of Appeals Fifth Circuit 

### FILED April 25, 2024 Lyle W. Cayce Clerk Case: 22-50987 Document: 144-1 Page: 1 Date Filed: 04/25/2024No. 22

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2 (2) the procedural and substantive reasonabl eness of his sentence. We affirm the conviction but vacate the sentence.

I. In 2019, agents detected suspicious activity from an IP address associated with a house in Fort Stockton, Texas , occupied by Perkins and his parents . Agents conducted a consensual interview with Perkins’s father at his place of work

. With the consent of the agents, Perkins’s father called his wife , told her to come to his office , and instructed her to leave the front door of their house unlocked

. When agents arrived to search the house, they recovered a large cache of child pornography belonging to Perkins

. Fortu

nately , the way that we resolve this appeal does not require us to describe further the content of Perkins’s collection nor his attitude toward , or alleged sexual activity with , children. Perkins was initially charged in a two

- count indictment with pos ses
sion and distribution of child pornography. His appointed counsel filed a motion for mental examination, which was granted. Perkins was evaluate d by psychologist Dr. Lacie Biber, who was employed at FMC Fort Worth, a Federal Bureau of Prisons ( “ BOP ” ) facility . During the evaluation, Perkins stated that he had been diagnosed with autism spectrum disorder and schizo

phrenia as a teenager and was ag ain diagnosed with schizophrenia during his hospitalization in 2020. Biber explained that she declined to give a schizo

phrenia diagnosis because Perkins did not meet the diagnostic criteria, point

ing to an early diagnosis, rather than in his early to mi d

- twenties; to the absence of hallucinations; and to a lack of marked change in functioning in late adolescence. As for delusions, Biber reported that Perkins’s religious beliefs about having two angels to guide him through life “appear to be a lit

eral interpretation of what he learned through his church and that he may attribute thoughts in his head as messages from these angels that help to com

Case: 22-50987 Document: 144-1 Page: 2 Date Filed: 04/25/2024No. 22

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3 fort him in difficult times.” According to Biber, Perkins was competent , as he was aware of his charges ; appeared to have sufficient factual information about , and a rational understanding of , court proceedings ; and could “reason through why a defendant would enter a certain defense strategy based on evi

dence and facts of a case.” After a hearing, the magi strate judge ( “ M

. J

. ” ) found Perkins compe

tent. B ased on Biber’s evaluation, the M

. J

. determined that Perkins was “not presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and con

sequences of the proceedings against him or to assist properly in his defense.” A few months later, Perkins filed a motion for a second competency hearing. In support, he provided a report from a psychologist retained by the defense, Dr. J ames Schutte , who noted that Perkins had diagnoses that included bipolar

- type schizoaffective disorder and autism and that Perkins reported having delusions as well as tactile, auditory, and visual hallucina

tions

. During the examination, Perkins “indicat ed that he has two angels who he feels are going to have him suddenly released from jail by influencing the judge or prosecutor in his case, or by causing evidence against him to disappear.” According to Schutte, Perkins understood the facts and tech

nica l terms relevant to his case but was unable properly to assist in his defense or understand the consequences of the criminal charges because “he feels that he is going be suddenly released from jail by divine intervention.” Per

kins reported that he had r ejected several plea

- bargain offers “because he does not want to sentence himself , ” t hough he also indicated significant understanding about how plea agreements work

. According to Schutte , He was able to state that a plea bargain offers a person a lesser sentence than if he or she went to trial, and is offered by the government in order to avoid going to trial. He reported that a Case: 22-50987 Document: 144-1 Page: 3 Date Filed: 04/25/2024No. 22

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4 defendant would take a plea bargain to receive a lesser pun ish

ment, and would not take a plea bargain if they do not agree with it, or if they want to take their chances at trial. Nevertheless, Schutte opined that Perkins’s delusions impaired his ability to work with defense counsel and impacted his ability to appreciate his predicament

. The g overnment then moved for another psychological examination

. Perkins was evaluated at FMC Fort Worth by BOP psychologist Dr. Samuel Browning , who determined that Perkins met “many of the characteristic criteria associated with [a]utism” a nd that “such symptoms dominate his clin ical picture.” Browning opined that Perkins did not have a mental disease that rendered him unable to understand the nature of the charges or the consequences of the proceeding or to assist in his defense

. Accordi ng to Browning, Perkins showed a factual and rational understanding of the legal proceedings , since he was able to discuss the charges and proceedings and deliberate with counsel about his decision to testify

. Browning observed noth ing indicating overt d ifficulties regarding Perkins’s ability to assist in his defense and that the evaluation suggested that Perkins could make rational decisions and assist counsel

. During th at second competency bout , but before the hearing, Perkins was charged in a second superseding indictment with one count of distribu

tion of child pornography in violation of 18 U.S.C. § 2252(a)(2) and eight counts of possessing devices containing child pornography in violation of 18 U.S.C. § 2252(a)(5)(B). The district court held a com petency hearing at which Schutte and Browning testified about their respective evaluations

. Schutte testified that he had diagnosed Perkins with bipolar

- type schizo

affective disorder, which caused hallucinations and delusions rendering him incompetent t o stand trial

. Schutte acknowledged that he disagreed with the BOP psychologists about whether Perkins had a psychotic condition and Case: 22-50987 Document: 144-1 Page: 4 Date Filed: 04/25/2024No. 22

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5 explained that, as a result of the hallucinations and delusions, Perkins believes “that he is actually not in legal jeopar dy and that these beings are going to resolve this case for him.” Given th o se irrational beliefs, Schutte opined, Perkins “does not have an ability to understand the consequences and the nature of these proceedings.” Schutte did not attribute the hallu cin

ations or delusions to religious beliefs and reasoned that Perkins’s beliefs are more extreme and not congruent with the other members of his church and therefore “enter the realm of a psychotic condition, namely schizo af fective disorder.” Browning t estified that Perkins was competent to stand trial because he displayed a rational understanding of the charges and the roles of the judge, jury, prosecutor, and defense counsel

. Browning spoke to correctional officers and health services staff, who said that Perkins had no discipline difficulties with daily life in jail

. As for Perkin s ’s religious beliefs about , inter alia , angels, Browning attributed them to autism and literal thinking and explained that Perkins reasons and describes things in rigid and concrete terms that others might describe more abstractly

. On cross

- examination, defense counsel read a paragraph from Schutte’s report about Perkins ’s hear ing angels who said they would help his case, and Browning agreed that, without further context, Perkins had prob

ably described a delusion or a hallu cination

. Browning clarified that during his evaluation, Perkins did not appear to be responding to internal stimuli, such as hearing or seeing angels

. In Browning’s view, Perkins’s reluctance
to acc ept a plea agreement was an unwillingness to admit guilt. Both doctors agreed that Perkins was not malin g ering or exaggerating symptoms

. After the second competency hearing, the district court issued an order finding that Perkins was competent , as he was “not presently suffering from a mental disease or defect rendering him incompetent to the extent that Case: 22-50987 Document: 144-1 Page: 5 Date Filed: 04/25/2024No. 22

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6 he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” The presentence investigation report ( “ PSR ” ) produced a guideline imprisonment range of 210

– 40 months

. But the sentencing proceeding s were a messy affair. At first, though the court sentenced Perkins to “210 months as to each count .

. . to run consecuti vely,” it did not appear to think it was imposing an upward variance , noting , “ [t] he Court does not depart from the recommended sentence,” finding that “the guideline range in this case [was] fair and reasonable,” and denying Perkins’s motion for a varianc e
. But toward the end of the sentencing hearing , the court abruptly reversed course in response to a clarification b y defense counsel : [THE COURT]:

. . . There ’ s no

— [Counselors], with the low end of the guidelines having been imposed, is it necessary for the Court to upwardly vary for that? [PROSECUTION]:

. . . Not from the Government. Thank you, Judge.
THE COURT: [Defense counsel?] [DEFENSE]: That is an upward variance, Your Honor. Again, under chapter 5, consecutive sentences.
THE COU RT: So the Court does vary upward for that pur

pose from the low end of the guidelines and run consecutively Counts I through IX, each and every count running con

secutively .

. . . Ultimately, the court sentenced Perkins to 210 months in prison for each count and ordered them to run consecutively followed by nine concurrent life terms of supervised release. That was indeed an upward variance. Perkins filed a motion for reconsideration. The court granted that motion , but out

- of

- time

. The court later app eared to recognize its error and quipped , “ [I] f the sentencing is what it is, and if we are fortunate enough to Case: 22-50987 Document: 144-1 Page: 6 Date Filed: 04/25/2024No. 22

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7 have it back again, we ’ ll take it up then.” Perkins appeals

.
II. First, we consider Perkins’s challenge to the district court’s finding of

co mpetency

.
A. When reviewing a district court’s competency determination, our court often splits its analysis into two steps. First , we ask about the nature of the defendant’s mental illness, then we ask whether that illness makes the defendant incompetent. See Bruce v. Estelle , 536 F.2d 1051, 1059 (5th Cir. 1976)

. 1
The standard of review is best articulated in United States v. Pervis : Our court reviews a district court’s competency determinatio n using a species of clear error review. Our task is to take a hard look at the facts to determine whether the district court ’ s com
pe tency finding was clearly arbitrary or unwarranted. Though we are to take a hard look at the record, it is not our task, as an appellate court, to relitigate the battle of the experts. 937 F.3d 546, 554 (5th Cir. 2019) (cleaned up). 2

**_____________________**
1 T he district court did not follow th at two

- step inquiry here. Though we are in

clined to believe that th at is not a sufficient reason to throw out the com petency determin

ation, Perkins does not even press such an argument . S o we make no definitive statement. We do caution district courts to take care to explain their competency deter mination s and to split their analys e s into the two steps as laid out in Bruce

. See 536 F.2d at 1059. Failure to do so hinders appellate review. “This appellate review is disadvan taged because the dis trict court .

. . d [ id] not disclose the rationale for the [its] conclusion.” Id. at 1062 (foot

note omitted).

2 The government conte nds that Bruce is wholly inapplicable because of its distinct procedural posture. But, as Perkins points out, Bruce itself says otherwise

. See 536 F.2d at 1058 (“The standard enunciated in United States v. Makris , 535 F.2d 899 (5th Cir. 1976), Case: 22-50987 Document: 144-1 Page: 7 Date Filed: 04/25/2024No. 22

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8 B. “The Constitution does not permit trial of an individual who lacks mental competency.” Indiana v. Edwards , 554 U.S. 164, 170 (2008) (clean ed up). A defendant is incompetent to stand trial when “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 a ssist properly in his defense.” 18 U.S.C. § 4241(d). On the other hand, a defendant is competent if he “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ” and “ a rational as well as factual under standing of the pro

ceed ings against him.” Dusky v. United States , 362 U.S. 402, 402 (1960) (per curiam) (cleaned up). Not all mental illnesses interfere with competency, so “[a] defendant can be both mentally ill and competent to stand trial.” Mays v. Stephens , 757 F.3d 211, 216 (5th Cir. 2014). “The Government bears the burden of proving that the defendant is competent.” Pervis , 937 F.3d at 554 (citation omitted). “In e valuating com

pe tency, the district court may consider various sources of evidence, includ

ing, but not limited to, its own observations of the defendant’s demeanor and behavior; medical testimony; and the observations of other individuals that have inter acted with the defendant.” Id. (cleaned up). W e do not “relitigate the battle of the experts

. ” I d. at 554

. With respect to the first part of the competency inquiry, we review the district court’s findings for “clear error” where the court has incorrectl y resolved conflicting diagnoses

. S ee Bruce , 536 F.2d at 1060. W here “the

over whelming weight of the medical evidence point [s] to” a condition not

**_____________________** for appell ate review is equally applicable to appeals from the district court in habeas pro

ceedings.” (cleaned up) )

. Case: 22-50987 Document: 144-1 Page: 8 Date Filed: 04/25/2024No. 22

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9 indicated by the district court , we may reverse its finding

. Id. at 1062. As to the latter part, s pecia l consideration should generally be given to the opinions of defense counsel. “Although an impaired defendant might be limited in his ability to assist counsel in demonstrating incompetence, the defendant ’ s inability to assist counsel can, in and of itsel f, constitute proba

tive evidence of incompetence, and defense counsel will often have the best

informed view of the defendant ’ s ability to participate in his defense.” 3

1

. First , we examine the nature of Perkins’s deficiencies

. Before getting into the meat of the dispute, Perkins convincingly argues (largely based on the timing of his symptoms) that he is not “malingering,” Pervis , 937 F.3d
at 555

– 58, or “exaggerating his symptoms , ” United States v. Simpson , 645 F.3d 300, 307 ( 5th Cir. 2011) . The government seemingly concedes th at point. The parties also do not dispute that Perkins suffers from autism , t hough there is some apparent dispute about how significant that autism is. While the government describes it as “mild,” Perki ns explains that it has led him to struggle to interact with other people ; to become unduly frustrated with tasks ; and to struggle to adjust to new situations

. For example , as a teenager , Perkins would “simply forgo showering” when “there was not

**_____________________**
3 Medina v. California , 505 U.S. 437, 450 (1992); s ee also Drope , 420 U.S. at 177 n.13 (noting that defense counsel’s “expressed doubt .

. . is unqu estionably a factor which should be considered” (cleaned up)). Based on caselaw from other circuits, Perkins sug

gests that if the district court failed to consider his attorney’s statements , “[t]hat fact alone supports reversal

. ” See McGregor v. Gibson , 248 F.3d 946, 959

– 61 (10th Cir. 2001) ; United States v. Mason , 52 F.3d 1286, 1292 (4th Cir. 1995) . Our circuit law forecloses such an

ex treme view. See United States v. Porter , 907 F.3d 374, 381 n.17 (5th Cir. 2018) (indicating it is not per se reversible error when a district court fails to consider defense counsel’s opinion about competency). Case: 22-50987 Document: 144-1 Page: 9 Date Filed: 04/25/2024No. 22

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10 enough t o time to complete” his “specific and lengthy shower routine”

— even when th at led to “hygiene problems.” Though Perkins’ s autism diagnosis is relevant to both the competency and sentencing dispute s , his contested schizophrenia diagnoses dominate the competency dispute

. That makes sense

. I n some circumstances, schizo phre

nia can compel a conclusion of incompetency. See Br uce , 536 F.2d at 1062.
Perkins points to a long history of schizophrenia , including a diagnosis
at age fourteen; a prescription of anti

- psychotics in his youth ; his hos pital i

zation for many mental illnesses in his late twenties ; 4 and his 2021 schizo

ph renia diagnosis from Schutte

. Perkins also observes that the definition of schizophrenia encompasses several of his apparent symptoms , including his

var ious auditory and tactile hallucinations , delusions , and complications such

as suicidal ideation

. T he government principally relies on the testimony of Browning and Biber , both of whom disagreed with Perkins’ s schizophrenia diagnoses

. The defense relies largely on Schutte and the testimony of Perkins’s attorneys. We address each in turn. 5
Dr. Biber

. A s a threshold matter, Perkins obliquely asserts that we should not consider Biber’s opinion at all. Perkins first objects that the gov

ernment did not call Biber as a witness or introduce her evaluation as evi

dence at the competency heari ng. As a result, Perkins urges that he was improperly denied the ability to cross

- examine Biber and that her report was never before the district judge

. The government responds that both the M

. J

. and Perkins’s own expert relied on B iber’s report. Moreov er, Perkins did

**_____________________**
4 Including another diagnosis of schizophrenia.

5 Though we leave discussion of the attorneys’ testimony principally to the second part of the competency inquiry. See infra part II.B.2. Case: 22-50987 Document: 144-1 Page: 10 Date Filed: 04/25/2024No. 22

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11 not object to the M

. J

. ’s consideration of Biber’s report, nor did he attempt to cal l Biber as a witness at the competency hearing

. Perkins replies that Biber was used by the M

. J

. “for the ‘limited purpose’ of an earlier competency hearing before a different judge.” He emphasizes that he is not challenging the earlier determination.
We have every justification (and perhaps even an obligation) to con

sider Biber’s diagnosis for s everal reasons . First, the standard of review for

com petency determinations obliges us to take “a hard look at the record

. ” Pervis , 937 F.3d at 554. A hard look at the record

— a record which includes the Biber diagnosis

— considers every part of the reco rd. Perkins provides no caselaw to the contrary. His sole case citation to United States v. Gray , 421 F.2d 316, 319 (5th Cir. 1970), is inapposite

. There, the government opted not to cross

- examine any of the expert s whose tes

timony unanimously support ed a finding of incompetency. Id. at 318. The government later tried to claim that the testimony was insufficient. Id. at 319 n.1. The court held that it would “not penalize [the defendant] for a defi ci

ency which was within the prosecution ’ s capacity to remedy.” Id.
But in th e matter at hand , we find the inverse situation. It was Perkins who declined to challenge the Biber diagnosis at his competency hearing, and now he claims that it was insufficient and would have us penalize the govern

ment for that decision

. Gray , if anything, suggests the exact opposite of what Perkins would have us do. Considering Biber’s report strongly militates against charac terizing Perkins’s illness as schizophrenia. Biber was aware of both of Perkins’s schizophrenia diagnos e s , spoke with him about his delusions, and appears to have observed him over time in a residential setting. The strongest mark against her report is that it occurred at a different (and earlier) time from the competency hearing being challenged here. Case: 22-50987 Document: 144-1 Page: 11 Date Filed: 04/25/2024No. 22

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12 Dr. Brownin g
. Br owning also concluded that Perkins’ s earlier schizo

phrenia diagnoses were incorrect

. Browning’s report is not , as Perkins sug

gests , an “outlier opinion.” Indeed, Browning forms part of the 2

- 1 majority we examine h ere . Perkins ’s main objection is that Browning did not “explore Perkins’s delusional beliefs” or “discuss the details of his delusions

. ” He also notes that Browning was open to the possibility that the angels were delu

sions

. 6 The government, on the other hand, stresses what it perceives as Browning’s superior qualifications and his greater opportunity to evaluate Perkins relative to Schutte

. Dr. Schutt e
. Un like Biber and Browning, Schutte diagnosed Perkins with schizophren ia

. He testified that Perkins was hearing the voices of two angels that were going to help him win his case by influencing the judge or by causing evidence to disappear

. The government does not attack Schutte’s report in depth , recognizing that he came t o a “different conclusion.” On the other hand, Perkins attempts to elevate Schutte’s report over

**_____________________**
6 Though this is not as straightforward as Perkins presents. In cross

- examination, defense counsel read Browning a passage from Schutte’s report describing the “delu

sions.” The following exchange then occurred: Q: This p aragraph here and these facts as described

— A: Uh

- huh. Q:

— does that suggest sort of inspiration or does that suggest a more tan

gible object in the room that might be qualified as a delusion? A: With no further context, I would say that it sounds probably like a delu

sion or a hallucination. Note how Browning couche s his answer as being “[w]ith no further context.” Tellingly, Browning reviewed the entirety of Schutte’s report. With that context, he seems to have c o me to the opposite conclusion. Case: 22-50987 Document: 144-1 Page: 12 Date Filed: 04/25/2024No. 22

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13 Browning’s. 7
Perkins’s “delusions .” Th e symptom at the center of this dispute is Perkins’s “d elusions. ” If he had auditory and visual hallucinations of sup er
natural beings who he firmly believed would “ resolve his legal case for him by either influencing the mind of [the judge] or the prosecution or causing evidence to disappear,” Perkins ’s competency might seriously be in doubt.
And Perkins proffers seve ral ways in which what he calls delusions interfered with his ability to participate in the trial including , inter alia , believ

ing that he was not in legal jeopardy because he would somehow be delivered , and his resistance to plea agreements. But Perkins hedged the impact of his beliefs in his discussions with Browning: When asked about the most likely outcome, he remarked, “Based o n the evidence and that side of the logic, I’d be found guilty

. . . with my belief in God, I’d gamble that.” He was able to articulate a basic understanding of plea bargains, and indi

cated he would consult with his attorney and his parents to decide whe ther a plea agreement offer was a good one, though he expressed reluctance to accept a plea offer. He displayed no influence of psychosis and/or self

- defeating motivation as it related to his decision

- making. Moreover, t he record contains alternative , med ically supported ex

plan a tions for the “delusions.” Browning testified that he “look[ed] at [the angels and similar experiences] in the broader context of how he would describe those types of things that might be commonplace. How would

**_____________________**
7 The government does point out that “Dr. Schutte assumed that Perkins ’[s] alleged schizophrenia and delusions made him per se incompetent.” Th at is puzzling , for t he record does not support that proposition. Nor is it particularly relevant, given that we lean on medical experts in only a lim i ted away when applying a particular diagnosis to a competency determination. See Bruce , 536 F. 2 d at 1062. Case: 22-50987 Document: 144-1 Page: 13 Date Filed: 04/25/2024No. 22

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14 some body descri be faith and their religion if they were speaking in a very con

crete manner because of autism spectrum disorder?” Browning also testified that , during his observation of Perkins , that [t]here was no indication that he was ever experiencing any internal s timuli, that he was hearing these angels, that he was seeing things in the room with us, that he was I guess distracted by the fact that he had these delusions and

. . . in his discussions of competency

- related matters, he was able to offer not only his fa ith as a reason for making decisions but also some rational explanations and understanding of the legal consequences. Perkins’s own explanation aligns with Browning’s characterization

. Take the following examples from Schutte’s own report: [ Perkins ] indi cates that he hears voices, but feels that they are “spiritual voices.” He indicated that he always says that he does not experience auditory or visual hallucinations because he does not feel that they are “psychological or psychiatric.” He indicated tha t he has two angels, as does everyone else, and added that he hears these on a continuous basis. Belief in the power and real

- world presence of supernatural beings is not so

uncommon. 8 Moreover, this court has previously upheld a district court’s explicit determination that “expressions of religious thoughts” were not symp toms of a psychotic disorder rendering a defendant incompetent despite conflicting expert evidence. See United States v. Wix , 416 F. App’x 338, 341 (5th Cir. 2011) (per curiam) ; see id. at 341

– 43

. The record as a whole

. I n sum, the evidence here is too split to charac

terize Perkins’s condition definitively

. He may have had diagnoses of schizo

-

**_____________________**
8 See, e.g. , U.S. Navy Seals 1

– 26 v. Biden , 27 F. 4 th 336, 342 & n.4 (5th Cir. 2022) (per curiam) (characterizing refusal to get a COVID vaccination because of “divine instruction not to receive the vaccine” as a “sincerely held religious belief[].” ). Case: 22-50987 Document: 144-1 Page: 14 Date Filed: 04/25/2024No. 22

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15 phrenia in the past, but “it is typically unusual for someone to be diagnosed with [s] chizophrenia that early in adolescence

. ” Perkins also lacked the “marked change in functioning” during “late adolescence” characteristic of individuals with that disorder

. Two doctors with experi ence in evaluating

com petency examined Perkins at the relevant time and concluded he was competent to stand trial. One dissented. T aking a hard look at the whole picture, it’s difficult to see the evidence as anything other than a genuinely mixed bag. 9

2

. W e turn to the ultimate inquiry: w hether Perkins’s mental health ren

dered him incompetent to stand trial.
The district court found Perkins competent to stand trial. Recall that a defendant is incompetent if he “is presently suffering from a mental disease or defe ct rendering him

. . . unable to understand the nature and conse

quences of the proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(d)

. 10 Perkins presents several examples of his own attorneys’ doubts about his competence , incl uding , inter alia , the ir requests for a competency hear

ing ; assertions that he was incapable of assisting counsel ; and Perkins’s reli

-

**_____________________**
9 We stress again the need for the district court to bi furcate its competency inquiry. For this part of the inquiry, we typically apply the ordinary clear

- error standard. But since the district court did not make a finding on the nature of Perkins ’s particular illness , there is nothing to which to apply such a standard. That inconveniences our review. See supra note 1

.
10 S ee also Dusky , 362 U.S. at 402 (cleaned up) (holding that a defendant is compe

tent when he “h as 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 under

standing of the proceedings against him.”). Case: 22-50987 Document: 144-1 Page: 15 Date Filed: 04/25/2024No. 22

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16 ance on otherworldly beings a nd resistance to beneficial plea agreements

. 11
B ut Perkins’s own attorneys did not offer an unequivocal declaration of his incompetency. One conceded that Perkins had “a basic understanding of the proceedings.” And Perkins himself presented a more cooperative pic

ture to Browning and Biber. T he district court’s conclusion that Perkins is compe tent to stand trial was not “clearly arbitrary or unwarra n ted.” Pervis , 937 F.3d at 554 (citation omitted)

. There are medical experts on both sides of the issue

. A nd a majority of the expert s providing testimony favor ing the district court’s finding. We need not get into the nitty

- gritty of who se qualifications are marginally more impressive or who se point of observation allowed for a keener view. W e may not “relitigate the battle of the experts.” Id

. We are not charg ed with making those sorts of calls. We are to review for a finding that is “clearly arbi trary or unwarranted.” United States v. Joseph , 333 F.3d 587, 589 (5th Cir. 2003).
Whatever Perkins’s mental condition , it is not clear ly arbitrary or

unwar ranted to say that it did not impact his ability to participate in his defense in the way that would render him incompetent. Resistance to plea deals, vague assertions that he was reluctant to help the defense, and strug

gles in com munication are quotidian prob lems in the world of criminal defense. As the gov ernment points out , the doctors on both sides agreed that Perkins had some under standing of the proceedings

. And the government is quite right that “even assuming [Perkins’s experiences] were psychotic d elusions, Dr. Schutte never explained how those beliefs rendered Perkins

**_____________________**
11 Perkins suggests that the district court’s purp orted failure to consider defense counsel’s opinions “alone supports reversal.” But that approach, perhaps adopted in other circuits, is foreclosed by Porter in ours. Nonetheless, it is “unquestionably a factor which should be considered.” Drope , 420 U.S. at 177 n.13. See supra note 3. Case: 22-50987 Document: 144-1 Page: 16 Date Filed: 04/25/2024No. 22

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17 unable [to] under stand his proceedings or assist his counsel.” 12
E xisting caselaw does not cleanly resolve the inquiry

. Bruce is the clos est case on point , for it provides some color as to how we ought to resolve conflicting diagnoses of schizophrenia. 536 F.2d at 1061

. Yet here , u nlike in Bruce , id. at 1061

– 62, the record does not include more than seven diagnoses during protracted litigation, where the district court sided wi th the sole out

lier

. It contains three , and the district court sided with the majority. 13 Moreover, Bruce is but one example that warrants reversal

— it does not establish what minimum threshold warrants reversal. Perkins’s case is clearly short of that one example . In Bruce , “the overwhelming weight of the medical evidence pointed to schizophrenia

. ” Id. at 1062. That is not so here.
Since Bruce does not end the inquiry, we lean heavily on the appro

priate standard of review

— a standard that is “a species of clear error review.” Pervis , 937 F.3d at 554 . Where, as here, there is a genuine ly mixed bag of evidence from adept witnesses as to the nature and consequence for this case of Perkins’s mental illness that does not plainly warrant a determ in

ation one way or the other , we should “[d]efer[] to the district court’s rea

sonable assessment of [a] complex record” and affirm. Id. at 548. 14

III. We now address the sentence . Because we vacate it for lack of proce

-

**_____________________**
12 Though again “[a] t this stage, expert testimony is not so important, although the psychiatrist ’ s ‘ inexpert ’ opinion can be a factor in the court ’ s independent decision. ” Bruce , 536 F.2d at 1062

.
13 That, of course, excludes the diagnoses from Perkins’s youth that are not raised in

- depth by either party.

14 We set aside any question of what might constitute a clearly arbitrary deter

mination. Cf., e.g. , supra note 1

. Case: 22-50987 Document: 144-1 Page: 17 Date Filed: 04/25/2024No. 22

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18 dural reasonab leness , we do not r each its substantive reasonableness

.
A. The parties dispute whether Perkins properly preserved his objection
at sentencing

. The government avers that he “did not contemporaneously object to the court’s explanation of its sentence or request further explanation.” Perkins responds that our caselaw considers preserved errors identi

fied in motions for reconsideration after sentencing hearings. 15 He points to his filing a Rule 35 motion to correct or reconsider his sentence

. See **Fed. R. Crim. P.**  35(a). That motion maintained that the court “ did not appear to articulate the basis for the substantial variance elevating a Guidelines sen

tence of roughly 22 ye ars to an effective life sentence.” At oral argument, the government responded to Perkins’s reply

- brief argument with two new lines of attack: (1) that Perkins’s objection was “not something that Rule 35 could have remedied” and (2) that “Rule 35 is not meant to preserve error after the sentencing hearing.” Th o se objections are foreclosed by Watkins

. See 450 F.3d at 185. There, we determined that defen dants had properly preserved error where they “ first raised their Sixth Amendment claim in a timely [ Rule] 35(a) motion, after the district court had orally pronounced the defendants ’ sentences .” Id. 16

**_____________________**
15 See United States v. Watkins , 450 F.3d 184, 185 (5th Cir. 2006) (per curiam); see also , e.g. , United States v. Hatley , 717 F. App’x 457 (5th Cir. 2018) (per curiam) (“Although he did not contemporaneously object, Hatley preserved this error by filing a post

sentencing motion for reco nsideration.”).

16 Watkins in turn referenced United States v. Burling , 4 2 0 F.3d 745 (8th Cir. 2005), in which an intervening development in the law made the error sufficiently clear , id. at 748

– 49

. See Watkins , 450 F.3d at 18 5. But Burling worked hard to minimize the distinction between the intervening case and its predecessors. See 4 2 0 F.3d at 748

. Case: 22-50987 Document: 144-1 Page: 18 Date Filed: 04/25/2024No. 22

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19 The government tries to distinguish Watkins by pointing to United States v. Henderson , 646 F.3d 223 (5th Cir. 2011), rev’d on other grounds , 568 U.S. 266 (2013) . In Henderson , we clarified that “ Watkins does not control” unless “the error [is] clear.” Id. at 224 (emphasis added). We continued that , for preservation purposes , “ a sentencing error is clear under R ule 35(a) only if it is not th e result of the exercise of the court’s discretion with regard to the application of the sentencing guidelines. ” Id. at 225 (cleaned up). So Rule 35(a) “ extends only to those cases in which an obvious error or mistake has occurred in the sentence, that i s, errors which would almost certainly result in a remand of the case to the trial court for further action. ” Id. (cleaned up). Consequently, an error is not clear “ when there is no binding precedent on a question on which there is a circuit split.” Id. Here, t he error as to sentencing procedure was egregious and clear. So Rule 35 was an appropriate vehicle to preserve error , and Perkins’s objec

tion was “sufficiently specific to alert the district court to the nature of the alleged error and to provi de an opportunity for correction.” United States v. Rodriguez

- Leos , 953 F.3d 320, 324 (5th Cir. 2020) (quoting United States v. Neal , 578 F.3d 270, 272 (5th Cir. 2009)). Perkins ’s objection is preserved.

B. Perkins attacks the procedural reasonableness of his sentence on the ground that “the court never explained its 137

- year variance from the Guide

lines range.” Therefore, United States v. Jones , 75 F.4th 502 (5th Cir. 2023), articulates the appropriate sta ndard of review : If the district court committed a significant procedural error, this [c] ourt must remand unless the error was harmless. Signif

icant procedural errors include: (1) failing to calculate (or improperly calculating) the applic able Guideline s range; (2) treating the Guidelines as mandatory; (3) failing to consider the 18 U.S.C. Case: 22-50987 Document: 144-1 Page: 19 Date Filed: 04/25/2024No. 22

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20 § 3553(a) factors; (4) determining a sentence based on clearly erroneous facts; or (5) failing

. . . adequately [to] explain the chosen sentence , including an explanat ion for any deviation from the Guidelines range. [ 17 ] Thus, we review whether the district court failed adequately to ex

plain the chosen sentence . I f so, we remand, unless that error was harmless. Both sides agree that the district court imposed an upward variance

. See United States v. Douglas , 910 F.3d 804, 808 (5th Cir. 2018). So, the question is whether the court violated its obligation to “explain [its] conclu

sion that an unusually lenient or an unusually harsh sentence is appropriate in a par ticular case with sufficient justifications.” 18 That explanation must be sufficient “to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall , 552 U.S. at 50. Our caselaw paints a detailed picture of what th at doe s

— an d does
not

— look like. Checking “four supporting § 3553(a) factors” in the “State

ment of Reasons” form and explaining that the court “opt ed

. . . for an above

guidelines sentence driven by the § 3553(a) factors” is enough. United States v. Conlan , 78 6 F.3d 380, 394

– 95 (5th Cir. 2015). So is an explanation that the variance is based on “prior similar drug conduct mentioned in the PSR .” United States v. Rhine , 637 F.3d 525, 527 (5th Cir. 2011) (cleaned up)

. 19 So

**_____________________**
17 Jones , 75 F.4th at 510

– 11 (citations omitted) (emphasis added); see United States v. Gomez , 905 F.3d 347, 351 (5th Cir. 2018).

18 Gall , 552 U.S. at 46; s ee 18 U.S.C. § 3553(c)(2) (“The court, at the time of sen

tencing, shall state in open court .

. . the specific reason for [an upward variance] .

. . .”).

19 The government takes a broader proposition in Rhine out of context. It contends that we evaluate procedural reasonableness “in light of the proceeding as a whole, including the facts revealed in the PSR .” Rhine , 637 F.3d at 529. But taking things “in li ght of the pro ceedings as a whole” does not absolve the district court of its responsibility to give a specific reason for an upward variance. Indeed, in Rhine , the district court specifically ref

erenced the facts in the PSR in justifying its upward dep arture. See id. at 527. Case: 22-50987 Document: 144-1 Page: 20 Date Filed: 04/25/2024No. 22

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21 too is a statement of reasons that

e xplained that the c ourt took into consideration the need to deter future criminal conduct and the need to protect the pub

lic, in light of the defendant ’ s history of assaultive and sexually assaultive behavior , and noted that the sentence was based on (1) the nature and circumstances of the offense and history and characteristics of the defendant, (2) the need to adequately deter criminal conduct, and (3) the need to protect the public from further crimes. Unite d States v. Fraga , 704 F.3d 432, 437 (5th Cir. 2013) (cleaned up). Finally, a statement that “the court has considered the arguments made earlier and as well as the information in the report” can be enough , depending on the content of the sentencing recor d. United States v. Bonilla , 524 F.3d 647, 657 (5th Cir. 2008), ove rruled on other grounds by United States v. Reyes

Contreras , 910 F.3d 169 (5th Cir. 2018) (en banc)

. On the other hand, “a single passing reference to § 3553(a)” and an indication that the variance was “based upon the government motion for upward departure” do not suffice. United States v. Chon , 713 F.3d 812, 823

– 24 (5th Cir. 2013) (per curiam). Nor does “a bare recitation of the Guide

line ’ s calculation” that “does not mention a defendan t’s arguments.” United States v. Mondragon

- Santiago , 564 F.3d 357, 363 (5th Cir. 2009) (cleaned up)

. Nor an explanation “based

. . . on § 3553(a)(2)(A)” that merely “ discuss ed what [ the defendant ’s ] sentence might have been” for a related , but uncharged , crime

— and that failed to “address [ his ] argument regarding the factors under § 3553(a)(1). ” United States v. Bostic , 970 F.3d 607, 611

– 12 (5th Cir. 2020) (cleaned up)

. Th e situation here plainly falls into the latter camp. The court initially claimed that it did not “depart from the recommended sentence” but , after clarifying with the defense , said it was “vary[ing] upward

. . . from the low Case: 22-50987 Document: 144-1 Page: 21 Date Filed: 04/25/2024No. 22

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22 end of the guidelines.” 20 Before that clarification, the court said it took note of the § 3553(a) “sent encing factors

. . . in arriving at a reasonable sentence.” It proceeded immediately to say that “[it] found the guidelines range in this case to be fair and reasonable.” In its Statement of Reasons, the court checked only one box for its reason for a variance, “Other.” An d next to “Other” it wrote “all reasons stated in open court.” The government marshals two lines of defense to Perkins’s claim. First, it gives an exhaustive list of what the district court did do: The court informed the parties that it had the discreti on to run the sentences for Perkins’ child

- pornography counts concur

rently or consecutively. It read Perkins’ pleadings, listened to his extensive arguments for a sentence below the guidelines range, and asked the government to address one of those argu

ments. The court then expressly denied Perkins’ motion for downward variance, finding it was not justified by the sen tenc

ing factors in § 3553. Assume arguendo that all of th at is true. It is still insufficient. Crucially absent is the one failing th at Perkins points out here: a n explan ation with specific

rea sons why an upward variance was justified. Second, the government re iterates its reasoning from its motion for an upward variance , the § 3553(a) factors, and the reasons stated at sen tenc ing. But that motion was not even characterize d as one for an above

- g uideline

sen tence

. And the government admits that “the sentenc ing tran script .

. . does not contain specific fact findings for running the sen tences con secu
tively.” The government’s post

- hoc rationalization of the variance is fore

closed by the text of § 3553(c)(2) , which provides that “ [t] he court , at the time

**_____________________**
20 Of course , the district court did in fact impose an upward variance beyond the g uideline range of 210

– 40 months. See Douglas , 910 F.3d at 808. Case: 22-50987 Document: 144-1 Page: 22 Date Filed: 04/25/2024No. 22

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23 of sentenc ing, shall state in open court .

. . the specific reason for [an upward vari ance]

. . . .” ( e mphasis added). T he court neither adopted the govern

ment’s reasons 21 nor stated any inde pen dent reasons in open court

. All it did was reference § 3553 i n pass ing . That is not enough. Chon , 713 F.3d at 824. The government’s best case in re sponse is Bonilla , 5 24 F.3d at 657

. There, our court found a statement that “the court has considered the argu

ments made earlier and as well as the information in the report” to be an adequate explanation. Id

. But Bonill a is inapposite for two reasons.
First , though in this case the court did review and adopt the PSR , that report did not recommend a variance. In fact, it qui t e explicitly indicated that it “had not identified any factors that would warrant a departure from the applicable sentencing guidelines range.” So, the PSR cannot provide the rea

sons that we seek. And there is no such reference to any “arguments made earlier” justifying the impositio n of a variance. By contrast, the district court in Bonilla referenced both the report and the “arguments made earlier” “[i]mmediately before imposing [the] sentence.” Id.
The district court did not even appear to think it was imposing an upward vari ance until the very end of the hearing when defense counsel clarified. At first the court ruled that it “ d [id] not depart from the recom

mended sentence , ” found that “the guideline range in this case [was] fair and reasonable,” and denied Perkins’s motion for a downward variance

. 22 Then ,

**_____________________**
21 Even if the district court did reference the government’s reasoning, that alone is not always enough to provide an adequate explanation. See Chon , 713 F.3d at 824 (“Con

sidering the district court ’ s single passing reference to the § 3553(a) factors and lack of any explan a tion for the upward departure, besides the indication on the statement of reasons that it was based on the government’s motion for an upward departure , the district court committed pro cedural error.” (emphasis added) (citation omitted)).

22 The district court docket also notes that the court did formally gran t a motion as Case: 22-50987 Document: 144-1 Page: 23 Date Filed: 04/25/2024No. 22

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24 only a few pages later, it shifted gears dramatically : [THE COURT]:

. . . There ’ s no

— [Counselors], with the low end of the guidelines having been imposed, is it necessary for the Court to upwardly vary for that? [PROSE CUTION]:

. . . Not from the Government. Thank you, Judge.
THE COURT: [Defense counsel?] [DEFENSE]: That is an upward variance, Your Honor. Again, under chapter 5, consecutive sentences. THE COURT: So the Court does vary upward for that pur

pose from the low end of the guidelines and run consecutively Counts I through IX, each and every count running consec

utively.

. . . The court did not expressly reference detailed material to justify its actions as in Bonilla

. It may have been somewhat uncert ain as to what its actions

were. Second, even absent those distinctions , Bonilla would not control. Bonilla noted that the reasons provided were “minimally sufficient” in the context of a 41

- month non

- guidelines sentence

. 524 F.3d at 657. The magni

tude of the sentence impacts what counts as an adequate explanation. 23 Therefore, we hesitate to say that what is minimally sufficient for a 41

- month

**_____________________** to a variance. But the mere act of granting a variance does not equate to adoption of the gov ernment’s position in full

. Nor does it serve as an adequate explanation itself. That would obviate the need ever to provide an independent expla nation.

23 See Gall , 552 U.S. at 50 (“We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one.”); United States v. Smith , 440 F.3d 704, 707 (5th Cir. 2006) (“The farther a sentence varies fr om the appli

cable Guideline sentence, the more compelling the justification based on factors in sec

tion 3553(a) must be.”)

. Case: 22-50987 Document: 144-1 Page: 24 Date Filed: 04/25/2024No. 22

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25 sentence is also sufficient for a 137

- year sentence. What is good for the goose, is good for the gander

— b ut not necessarily a pterodactyl

. 24 The government also cites Conlan and Rhine . As noted above, th o se are readily distinct. The court in Conlan at least checked several § 3553 fac

tors on its statement of reasons. 786 F.3d at 394

– 95. Here , th ere w as none
. And the court in Rhine articulated a far more extensive explanation of its reasoning than the one given here. Not to mention the variance in those cases was far less than what we have at hand now. 25 We do not consider the court’s grant ing Perkins’s motion for recon

sideration , where it note d that it was “considering an upward departure because of the nature, circumstances, and seriousness of [his] offense.” That order seems to have been out

- of

- time , so the court likely lacked jurisdiction to issue it

. See McClure v. Ashcroft , 335 F.3d 404 , 413 (5th Cir. 2003) (explaining when a district court can modify a sentence). Moreover, an order granting Perkins’s motion

— issued well after the sentence and indicating only a lean ing to depart upward

— can hardly be construed as a sufficient

**_____________________**
24 The government also cites United States v. Key , 599 F.3d 469 (5th Cir. 2010) , which is an application of Bonilla , in which the court “explicitly adopted” the “govern

ment’s sentencing argument.” Key , 599 F.3d at 474. Key is distinct from this case for the

same reasons as Bonilla . Though the sentence in Key was greater than Bonilla , it is still nearly an order of m agnitude smaller than the one here and substantially less of a departure from the guidelines ( both proportionally and absolutely). See id. at 471

– 72 (noting a 46

- to

57

- month guideline range and a 216

- month sentence).

25 Perkins also notes that Conlan , Rhin e , and Fraga involved much smaller upward variances. That’s right. Compared to the 1,650

- month upward variance here, variances of 9 months , Fraga , 704 F.3d at 437, 147 months , Rhine , 637 F.3d at 535, and less than 96 months, Conlan , 786 F.3d at 394, are trivial. As noted above, the extent of the variance has meaningful implications for what constitutes an adequate explanation. See supra note 2 3 and accompanying text. Case: 22-50987 Document: 144-1 Page: 25 Date Filed: 04/25/2024No. 22

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26 justification for the court’s original sentence. 26
* * * * * Thus, the distri ct court erred , conscientiously realized that error, and now expects that th e case will come back after this appeal. 27 W e **AFFIRM** Per kins’s conviction, **VACATE** his sen tence, and **REMAND** for resen
tenc ing. We express no view on the sentence that the district court should

announce on remand

.

**_____________________**
26 Cf. 18 U.S.C. § 3553(c)(2) (“The court, at the time of sentencing , shall state in open court . . . the specific reason for [an upward variance]

. . . .” (emphasis added) )

.
27 “[I]f the sentencing is what it is, and if we are fortunate enough to have it back again, we ’ ll take it up then.” Case: 22-50987 Document: 144-1 Page: 26 Date Filed: 04/25/2024