United States Court of Appeals

for 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 distributing child 

pornography in violation of 18 U.S.C. § 2252A(a)(2) and eight counts of possessing devices containing child pornography in violation of 18 U.S.C. 

§ 2252A(a)(5)(B). Perkins has undeniable mental issues, but the district 

court determined him competent to stand trial. He was convicted and sentenced to more than 157 years—a substantial upward variance from the 

guideline range. 

Perkins appeals, challenging (1) the competency determination and 

United States Court of Appeals

Fifth Circuit

FILED

April 25, 2024

Lyle W. Cayce

Clerk

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2

(2) the procedural and substantive reasonableness 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. Fortunately, 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 possession and distribution of child pornography. His appointed counsel filed a 

motion for mental examination, which was granted. Perkins was evaluated 

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 schizophrenia as a teenager and was again diagnosed with schizophrenia during his 

hospitalization in 2020. Biber explained that she declined to give a schizophrenia diagnosis because Perkins did not meet the diagnostic criteria, pointing to an early diagnosis, rather than in his early to mid-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 literal 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 comCase: 22-50987 Document: 144-1 Page: 2 Date Filed: 04/25/2024
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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 evidence and facts of a case.”

After a hearing, the magistrate judge (“M.J.”) found Perkins competent. Based 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 consequences 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. James 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 hallucinations. During the examination, Perkins “indicated 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 technical 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.” Perkins reported that he had rejected several plea-bargain offers “because he 

does not want to sentence himself,” though 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 

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defendant would take a plea bargain to receive a lesser punishment, 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 government 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” and that “such symptoms dominate his 

clinical 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. According 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 

nothing indicating overt difficulties regarding Perkins’s ability to assist in his 

defense and that the evaluation suggested that Perkins could make rational 

decisions and assist counsel. 

During that second competency bout, but before the hearing, Perkins 

was charged in a second superseding indictment with one count of distribution 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 competency hearing at 

which Schutte and Browning testified about their respective evaluations. 

Schutte testified that he had diagnosed Perkins with bipolar-type schizoaffective disorder, which caused hallucinations and delusions rendering him 

incompetent to stand trial. Schutte acknowledged that he disagreed with the 

BOP psychologists about whether Perkins had a psychotic condition and 

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explained that, as a result of the hallucinations and delusions, Perkins 

believes “that he is actually not in legal jeopardy and that these beings are 

going to resolve this case for him.” Given those 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 hallucinations 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 schizoaffective 

disorder.”

Browning testified 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 Perkins’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 hearing angels who said they would help his 

case, and Browning agreed that, without further context, Perkins had probably described a delusion or a hallucination. 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 accept a plea agreement was an unwillingness to admit guilt. Both doctors 

agreed that Perkins was not malingering 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 

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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 proceedings were

a messy affair. At first, though the court sentenced Perkins to “210 months 

as to each count . . . to run consecutively,” 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 variance. But 

toward the end of the sentencing hearing, the court abruptly reversed course 

in response to a clarification by 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 COURT: So the Court does vary upward for that purpose from the low end of the guidelines and run consecutively 

Counts I through IX, each and every count running consecutively . . . .

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 appeared to recognize its error and 

quipped, “[I]f the sentencing is what it is, and if we are fortunate enough to 

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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 

competency.

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 determination 

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 competency 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

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1 The district court did not follow that two-step inquiry here. Though we are inclined to believe that that is not a sufficient reason to throw out the competency determination, Perkins does not even press such an argument. So we make no definitive statement. 

We do caution district courts to take care to explain their competency determinations and 

to split their analyses 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 disadvantaged because the 

district court . . . d[id] not disclose the rationale for the [its] conclusion.” Id. at 1062 (footnote omitted).

2 The government contends 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), 

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B.

“The Constitution does not permit trial of an individual who lacks 

mental competency.” Indiana v. Edwards, 554 U.S. 164, 170 (2008) (cleaned 

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 assist 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 understanding of the proceedings 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 evaluating competency, the district court may consider various sources of evidence, including, but not limited to, its own observations of the defendant’s demeanor and 

behavior; medical testimony; and the observations of other individuals that 

have interacted with the defendant.” Id. (cleaned up). We do not “relitigate 

the battle of the experts.” Id. 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 incorrectly 

resolved conflicting diagnoses. See Bruce, 536 F.2d at 1060. Where “the 

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

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for appellate review is equally applicable to appeals from the district court in habeas proceedings.” (cleaned up)).

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indicated by the district court, we may reverse its finding. Id. at 1062. 

As to the latter part, special 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 itself, constitute probative evidence of incompetence, and defense counsel will often have the bestinformed 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 that

point.

The parties also do not dispute that Perkins suffers from autism, 

though there is some apparent dispute about how significant that autism is. 

While the government describes it as “mild,” Perkins 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); see also Drope, 420 U.S. at 177 n.13 

(noting that defense counsel’s “expressed doubt . . . is unquestionably a factor which 

should be considered” (cleaned up)). Based on caselaw from other circuits, Perkins suggests 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 

extreme 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).

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enough to time to complete” his “specific and lengthy shower routine”—

even when that led to “hygiene problems.” 

Though Perkins’s autism diagnosis is relevant to both the competency 

and sentencing disputes, his contested schizophrenia diagnoses dominate the 

competency dispute. That makes sense. In some circumstances, schizophrenia can compel a conclusion of incompetency. See Bruce, 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 hospitalization for many mental illnesses in his late twenties;4 and his 2021 schizophrenia diagnosis from Schutte. Perkins also observes that the definition of 

schizophrenia encompasses several of his apparent symptoms, including his

various auditory and tactile hallucinations, delusions, and complicationssuch 

as suicidal ideation. 

The 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. As a threshold matter, Perkins obliquely asserts that we 

should not consider Biber’s opinion at all. Perkins first objects that the government did not call Biber as a witness or introduce her evaluation as evidence at the competency hearing. 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 Biber’s report. Moreover, 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.

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not object to the M.J.’s consideration of Biber’s report, nor did he attempt to 

call 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 consider Biber’s diagnosis for several reasons. First, the standard of review for 

competency 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 record. 

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 experts whose testimony unanimously supported 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 deficiency which was within the prosecution’s capacity to remedy.” Id. 

But in the 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 government for that decision. Gray, if anything, suggests the exact opposite of what 

Perkins would have us do.

Considering Biber’s report strongly militates against characterizing 

Perkins’s illness as schizophrenia. Biber was aware of both of Perkins’s 

schizophrenia diagnoses, 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. 

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Dr. Browning. Browning also concluded that Perkins’s earlier schizophrenia diagnoses were incorrect. Browning’s report is not, as Perkins suggests, an “outlier opinion.” Indeed, Browning forms part of the 2-1 majority 

we examine here. 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 delusions.

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. Schutte. Unlike Biber and Browning, Schutte diagnosed Perkins 

with schizophrenia. 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 to 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 “delusions.” The following exchange then occurred:

Q: This paragraph here and these facts as described—

A: Uh-huh.

Q: —does that suggest sort of inspiration or does that suggest a more tangible 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 delusion or a hallucination.

Note how Browning couches 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 come to the opposite conclusion.

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Browning’s.7

Perkins’s “delusions.” The symptom at the center of this dispute is 

Perkins’s “delusions.” If he had auditory and visual hallucinations of supernatural 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 several ways in which what he calls delusions 

interfered with his ability to participate in the trial including, inter alia, believing 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 on 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 indicated he would consult with his attorney and his parents to 

decide whether 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, the record contains alternative, medically supported explanations 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.” That is puzzling, for 

the record does not support that proposition. Nor is it particularly relevant, given that we

lean on medical experts in only a limited away when applying a particular diagnosis to a 

competency determination. See Bruce, 536 F.2d at 1062.

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somebody describe faith and their religion if they were speaking in a very concrete 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 stimuli, 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 

faith 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] indicates 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 that 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 

symptoms 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. In sum, the evidence here is too split to characterize 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.4th 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[].”).

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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 experience in evaluating 

competency examined Perkins at the relevant time and concluded he was 

competent to stand trial. One dissented. Taking a hard look at the whole 

picture, it’s difficult to see the evidence as anything other than a genuinely 

mixed bag.9

2.

We turn to the ultimate inquiry: whether Perkins’s mental health rendered 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 defect rendering him . . . unable to understand the nature and consequences 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, including, inter alia, their requests for a competency hearing; assertions that he was incapable of assisting counsel; and Perkins’s reli-

_____________________

9 We stress again the need for the district court to bifurcate 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 See also Dusky, 362 U.S. at 402 (cleaned up) (holding that a defendant is competent when he “has sufficient present ability to consult with his lawyer with a reasonable 

degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.”).

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ance on otherworldly beings and resistance to beneficial plea agreements.

11

But 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 picture to Browning and Biber. The district court’s conclusion that Perkins is 

competent to stand trial was not “clearly arbitrary or unwarranted.” Pervis, 

937 F.3d at 554 (citation omitted).

There are medical experts on both sides of the issue. And a majority

of the experts providing testimony favoring the district court’s finding. We 

need not get into the nitty-gritty of whose qualifications are marginally more 

impressive or whose point of observation allowed for a keener view. We may 

not “relitigate the battle of the experts.” Id. We are not charged with making 

those sorts of calls. We are to review for a finding that is “clearly arbitrary 

or unwarranted.” United States v. Joseph, 333 F.3d 587, 589 (5th Cir. 2003).

Whatever Perkins’s mental condition, it is not clearly arbitrary or 

unwarranted 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 struggles in communication are quotidian problems in the world of criminal 

defense. As the government points out, the doctors on both sides agreed that 

Perkins had some understanding of the proceedings. And the government is 

quite right that “even assuming [Perkins’s experiences] were psychotic 

delusions, Dr. Schutte never explained how those beliefs rendered Perkins 

_____________________

11 Perkins suggests that the district court’s purported 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.

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unable [to] understand his proceedings or assist his counsel.”12

Existing caselaw does not cleanly resolve the inquiry. Bruce is the 

closest 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, unlike in

Bruce, id. at 1061–62, the record does not include more than seven diagnoses 

during protracted litigation, where the district court sided with the sole outlier. 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 appropriate 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 genuinely 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 determination one way or the other, we should “[d]efer[] to the district court’s reasonable 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 determination. Cf., e.g., supra note 1.

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dural reasonableness, we do not reach 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 identified 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 sentence of roughly 22 years 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.” Those objections are 

foreclosed by Watkins. See 450 F.3d at 185. There, we determined that 

defendants 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 postsentencing motion for reconsideration.”).

16 Watkins in turn referenced United States v. Burling, 420 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 185. But Burling worked hard to minimize the distinction 

between the intervening case and its predecessors. See 420 F.3d at 748.

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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 Rule 35(a) 

only if it is not the 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 is, 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, the error as to sentencing procedure was egregious and clear. 

So Rule 35 was an appropriate vehicle to preserve error, and Perkins’s objection was “sufficiently specific to alert the district court to the nature of the 

alleged error and to provide 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 Guidelines range.” Therefore, United States v. Jones, 75 F.4th 502 (5th Cir. 2023),

articulates the appropriate standard of review:

If the district court committed a significant procedural error, 

this [c]ourt must remand unless the error was harmless. Significant procedural errors include:

(1) failing to calculate (or improperly calculating) the 

applicable Guidelines range; (2) treating the Guidelines 

as mandatory; (3) failing to consider the 18 U.S.C. 

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§ 3553(a) factors; (4) determining a sentence based on 

clearly erroneous facts; or (5) failing . . . adequately [to]

explain the chosen sentence, including an explanation for 

any deviation from the Guidelines range.[17]

Thus, we review whether the district court failed adequately to explain the chosen sentence. If 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] conclusion that an unusually lenient or an unusually harsh sentence is appropriate 

in a particular 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 that does—and does 

not—look like. Checking “four supporting § 3553(a) factors” in the “Statement of Reasons” form and explaining that the court “opted . . . for an aboveguidelines sentence driven by the § 3553(a) factors” is enough. United States 

v. Conlan, 786 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; see 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] . . . .”).

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 light of the 

proceedings 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 referenced the facts in the PSR in justifying its upward departure. See id. at 527.

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too is a statement of reasons that 

explained that the court took into consideration the need to 

deter future criminal conduct and the need to protect the public, 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.

United 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 record. United States v. Bonilla, 524 F.3d 

647, 657 (5th Cir. 2008), overruled on other grounds by United States v. ReyesContreras, 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 Guideline’s calculation” that “does not mention a defendant’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 “discussed 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).

The 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 

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end of the guidelines.”20 Before that clarification, the court said it took note 

of the § 3553(a) “sentencing 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.” And 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 discretion to run 

the sentences for Perkins’ child-pornography counts concurrently 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 arguments. The court then expressly denied Perkins’ motion for 

downward variance, finding it was not justified by the sentencing factors in § 3553. 

Assume arguendothat all of that is true. It is still insufficient. Crucially absent 

is the one failing that Perkins points out here: an explanation with specific 

reasons why an upward variance was justified.

Second, the government reiteratesits reasoning from its motion for an 

upward variance, the § 3553(a) factors, and the reasons stated at sentencing. 

But that motion was not even characterized as one for an above-guideline 

sentence. And the government admits that “the sentencing transcript . . . 

does not contain specific fact findings for running the sentences consecutively.” The government’s post-hoc rationalization of the variance is foreclosed by the text of § 3553(c)(2), which providesthat “[t]he court, at the time 

_____________________

20 Of course, the district court did in fact impose an upward variance beyond the 

guideline range of 210–40 months. See Douglas, 910 F.3d at 808. 

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of sentencing, shall state in open court . . . the specific reason for [an upward 

variance] . . . .” (emphasis added). The court neither adopted the government’s reasons21 nor stated any independent reasons in open court. All it did 

was reference § 3553 in passing. That is not enough. Chon, 713 F.3d at 824. 

The government’s best case in response is Bonilla, 524 F.3d at 657. 

There, our court found a statement that “the court has considered the arguments made earlier and as well as the information in the report” to be an 

adequate explanation. Id. But Bonilla 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 quite 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 reasons that we seek. And there is no such reference to any “arguments made 

earlier” justifying the imposition 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 variance until the very end of the hearing when defense counsel 

clarified. At first the court ruled that it “d[id] not depart from the recommended 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 (“Considering the district court’s single passing reference to the § 3553(a) factors and lack of any 

explanation 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 

procedural error.” (emphasis added) (citation omitted)).

22 The district court docket also notes that the court did formally grant a motion as 

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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?

[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 COURT: So the Court does vary upward for that purpose from the low end of the guidelines and run consecutively 

Counts I through IX, each and every count running consecutively. . . .

The court did not expressly reference detailed material to justify its actions 

as in Bonilla. It may have been somewhat uncertain 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 magnitude 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 

government’s position in full. Nor does it serve as an adequate explanation itself. That 

would obviate the need ever to provide an independent explanation.

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 from the applicable Guideline sentence, the more compelling the justification based on factors in section 3553(a) must be.”).

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sentence is also sufficient for a 137-year sentence. What is good for the goose, 

is good for the gander—but not necessarily a pterodactyl.

24 

The government also cites Conlan and Rhine. As noted above, those 

are readily distinct. The court in Conlan at least checked several § 3553 factors on its statement of reasons. 786 F.3d at 394–95. Here, there was 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 granting Perkins’s motion for reconsideration, where it noted 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 leaning 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 “government’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 magnitude 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-to57-month guideline range and a 216-month sentence).

25 Perkins also notes that Conlan, Rhine, 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 23 and accompanying text.

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justification for the court’s original sentence.26 

* * * * *

Thus, the district court erred, conscientiously realized that error, and 

now expects that the case will come back after this appeal.27 We AFFIRM 

Perkins’s conviction, VACATE his sentence, and REMAND for resentencing. 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.”

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