[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-14131

Non-Argument Calendar

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D.C. Docket No. 1:13-cr-20138-CMA-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

FRANKIE JERMAINE ANDERSON, 

 Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

 (September 1, 2017)

Before HULL, MARCUS, and FAY, Circuit Judges.

PER CURIAM:

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Defendant Frankie Anderson appeals his convictions on the grounds that he 

lacked the mental competence to enter a guilty plea at the time of his April 2, 2013

plea hearing. Anderson suffers from schizophrenia and now contends that the 

district court should have sua sponte ordered a competency hearing to evaluate his

competency to enter a guilty plea. The government responds that Anderson’s 

appeal is untimely and that the district court did not err by accepting Anderson’s 

guilty plea. After thorough review, we affirm.

I. BACKGROUND

A. Criminal Information and Plea Agreement

On March 7, 2013, a criminal information charged Anderson with 

(1) conspiring to defraud the United States by knowingly receiving, concealing, 

and retaining over $1,000 in federal tax refund checks, knowing that the checks 

had been embezzled, stolen, purloined, and converted, in violation of 18 U.S.C. 

§ 371, (Count One) and (2) theft of government property, in violation of 18 U.S.C. 

§ 641 (Count Two). Specifically, the information stated that Anderson brought 

thousands of fraudulently obtained tax refund checks in other people’s names to 

his co-conspirator’s check cashing store. From February 2012 through June 2012, 

Anderson knowingly and fraudulently cashed more than seven million dollars in 

tax refund checks.

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On April 2, 2013, Anderson pled guilty to both counts. In the plea 

agreement, Anderson agreed to fully cooperate with the government by providing 

information, testifying if needed, and working in an undercover role. The 

government reserved the right to, in its sole discretion, review Anderson’s 

cooperation and make a motion for a sentence reduction under U.S.S.G. § 5K1.1 or 

18 U.S.C. § 3553(e).

In connection with the plea agreement, Anderson admitted in a written

factual proffer that he cashed thousands of fraudulently obtained tax refund checks

in amounts totaling over seven million dollars. Anderson received approximately 

20% of the face value of the checks and used the money to buy real property and 

multiple luxury cars.

B. Plea Hearing

On April 2, 2013, the district court held a plea hearing. At the plea hearing, 

the district court asked Anderson a series of questions before accepting Anderson’s 

guilty plea. The district court instructed Anderson to say something if he did not 

understand a question and told Anderson that he would be allowed to speak to his 

attorney off the record should he so desire.

The district court asked Anderson if he had “ever been treated for a mental 

illness or an addiction to narcotic drugs.” Anderson replied: “Yes.” Anderson had 

been treated for schizophrenia. The district court asked Anderson if he was taking 

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any medication, what it was, and how often he took it. Anderson admitted that he 

was taking medication daily but did not remember the name of it.

The district court then asked Anderson: “Does that medication affect your 

ability to make decisions and control your own conduct?” Anderson responded: 

“No.” The district court followed up, asking: “Are you understanding everything 

that’s happening here this morning?” Anderson answered: “Yes.”

The district court continued to follow up, asking: “Do you believe that you 

have any mental or physical condition or illness that prevents you from 

understanding what’s happening here in court this morning?” Anderson again 

answered: “No.” The district court similarly queried Anderson’s counsel about 

Anderson’s mental competence: “[I]n your opinion, is your client competent to 

enter a guilty plea?” Anderson’s counsel responded: “Yes, Your Honor.”

The district court then confirmed with Anderson that Anderson had received 

the criminal information and discussed the charges and the case with his attorney. 

Anderson told the district court that he understood the charges against him. 

Anderson’s counsel informed the district court that Anderson “is fully aware of the 

consequences of his guilty plea and the deal” offered by the government, had 

reviewed the charges, and had signed his confession. Anderson agreed with his 

counsel’s statement. Anderson also stated that he had the opportunity to read the 

plea agreement and to discuss it “fully” with his attorney.

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The district court then went over the plea agreement with Anderson. 

Anderson repeatedly assured the district court that he understood what was 

happening, that he had no questions or concerns, and that he agreed with the 

district court’s description of the plea agreement. Anderson specifically agreed 

that the plea agreement made “no promises” with regard to a sentence. Anderson 

also indicated that he understood and agreed that the government reserved the right 

to evaluate his cooperation and had “sole discretion” to file a motion requesting a 

sentenced reduction, which the district court would have no obligation to grant.

The district court similarly reviewed the consequences of pleading guilty 

with Anderson. Anderson stated that he understood the consequences. Anderson 

again admitted to the stipulated facts in the factual proffer. Specifically, Anderson 

conceded that the government could prove beyond a reasonable doubt that (1) from 

February 2012 through June 2012, he knowingly brought fraudulently obtained 

income tax refund checks totaling over seven million dollars to the check cashier; 

(2) he received approximately 20% of the face value of the checks; and (3) on 

November 28, 2012, he possessed 35 tax refund checks worth over one hundred 

thousand dollars in the names of other people and obtained by fraud that he 

intended to convert for his own benefit.

The district court found Anderson competent and capable of entering a 

guilty plea, stating:

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It is the finding of the Court that the Defendant Frankie 

Jermaine Anderson is fully competent and capable of entering an 

informed plea, that he is aware of the nature of the charges and the 

consequences of his plea based upon his conversations with his 

attorney and the colloquy before the Court, that the plea of guilty is a 

knowing and voluntary plea supported by an independent basis in fact 

containing each of the essential elements of the offenses and that the 

agreement presented to the Court was voluntarily entered into and is 

not the result of force, threats or coercion. I also find the Defendant 

has entered his plea with the advice and the assistance of the effective 

and competent counsel. 

The district court thus accepted Anderson’s guilty plea for Counts One and Two. 

After the plea hearing, Anderson remained out of prison on bond but wore an 

electronic monitoring bracelet.

C. Presentence Report

The Presentence Investigation Report (“PSI”) calculated Anderson’s total 

offense level as 29 and assigned Anderson a criminal history category of III. The 

PSI thus calculated an advisory guidelines range of imprisonment of 108 to 135 

months. The PSI also noted that Count One had a term of imprisonment of zero to 

five years and that Count Two had a term of imprisonment of zero to ten years.

The PSI also discussed Anderson’s mental health. According to the PSI, 

Anderson, who was born in 1972, reportedly began hearing voices and feeling 

anxious at the age of 20. In 2003, Anderson was diagnosed with schizophrenia and 

prescribed an anti-psychotic drug, risperidone.

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On March 26, 2013, a doctor evaluated Anderson at the request of the 

probation office. The doctor diagnosed Anderson with schizophrenia, chronic 

paranoid type, and anxiety disorder. The doctor recommended that Anderson 

attend monthly psychiatric medication management sessions, and Anderson 

attended his first such therapy session on April 24, 2013.

Anderson admitted to self-medicating with alcohol, marijuana, cocaine, and 

Xanax to control his anxiety and admitted that he could benefit from a substance 

abuse treatment program.

Neither Anderson nor the government filed any objections to the PSI.

D. Sentence

On June 10, 2013, the district court entered its judgment and sentenced 

Anderson to statutory maximum prison terms of 120 months, consisting of 60 

months as to Count One and 120 months as to Count Two, served concurrently. 

The district court ordered restitution in the amount of $9,292,228.40.

At the sentencing hearing, the district court informed Anderson that he had

14 days to file a notice of appeal following the entry of the judgment.

E. Motion for Specific Performance of the Plea Agreement

On June 24, 2014, Anderson filed a pro se motion for “specific 

performance” of his plea agreement, requesting that the district court compel the 

government to acquiesce to a sentence reduction for Anderson under U.S.S.G. 

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§ 5K1.1. Anderson claimed that he had provided more than substantial assistance 

to the government by performing controlled buys and obtaining recorded 

conversations of certain conspirators. Anderson also claimed that the government 

put him and his wife in danger by releasing to the press that someone was 

informing on those conspirators.

On July 14, 2014, the district court denied Anderson’s motion. The district 

court found that the government had sufficient, legitimate reasons for not filing a 

motion for sentence reduction and that Anderson had not shown any improper 

motive by the government.

F. Appeal

On August 30, 2015, Anderson, proceeding pro se, filed a notice of appeal of 

the judgment against him.

1

 Anderson appealed his convictions and sentences and 

claimed that his poor mental health prevented him from understanding what was

going on when he pled guilty.

This Court appointed the federal public defender to represent Anderson in 

his appeal.

 1

Under the prison mailbox rule, “a pro se prisoner’s court filing is deemed filed on the 

date it is delivered to prison authorities for mailing.” Daniels v. United States, 809 F.3d 588, 589 

(11th Cir. 2015) (per curiam) (quoting Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir. 

2009)), cert. denied, 137 S. Ct. 40 (2016). Anderson signed his notice of appeal on August 30, 

2015 and without evidence to the contrary we assume that is when Anderson delivered it to the 

prison authorities. Id.

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On appeal, Anderson argued first that the district court should have sua 

sponte ordered a competency hearing in lieu of accepting his guilty plea and,

second, that his sentence was substantively unreasonable. The government filed a 

motion to dismiss Anderson’s appeal due to an appeal waiver in Anderson’s plea 

agreement.

This Court granted the government’s motion to dismiss as to Anderson’s 

claim that his sentence was unreasonable. United States v. Anderson, No. 15-

14131-CC at 3-4 (11th Cir. Jan. 19, 2017) (per curiam). This Court, however, 

denied the government’s motion as to Anderson’s claim about his competency, 

concluding that the terms of the waiver applied only to sentencing issues and did 

not extend to his competency to plead guilty in the first place. Id. at 4. We are 

thus left with only the competency issue in this appeal.

II. DISCUSSION

A. Timeliness of the Appeal

Anderson filed this appeal on August 30, 2015, over two years after the 

district court sentenced him on June 10, 2013. The government contends that this 

lengthy delay makes Anderson’s appeal untimely.

Federal Rule of Appellate Procedure 4 states that in a criminal case a 

defendant’s notice of appeal must be filed within 14 days of the entry of the 

judgment or order being appealed or the filing of the government’s notice of 

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appeal, whichever is later. Fed. R. App. P. 4(b)(1). The district court may extend 

the time to file a notice of appeal upon a finding of “excusable neglect or good 

cause” but only “for a period not to exceed 30 days” from when the time to appeal 

would otherwise expire. Fed. R. App. P. 4(b)(4). Rule 4(b)’s deadline is not 

jurisdictional, but when the government properly makes a timeliness objection, we 

must apply Rule 4(b)’s time limits. United States v. Lopez, 562 F.3d 1309, 1313-

14 (11th Cir. 2009).

Anderson’s appeal came well after the district court entered its judgment 

against him. What’s more, Anderson filed his appeal two years after a 30 day

extension would have expired. Because Anderson failed to file his appeal within 

the time allowed by Rule 4(b), his appeal is untimely, and we must dismiss it. 

Lopez, 562 F.3d at 1313-14.

Anderson argues that the government forfeited any timeliness objection to 

his appeal because during the time period for filing an appeal the government was 

keeping him out of prison and working with him on efforts that he believed would 

lead to the government filing a motion for sentence reduction. Anderson cites no 

law in support of his position.

Between the entry of judgment and the filing of this notice of appeal, 

Anderson did file a motion to have the district court compel the government to 

move for a sentence reduction. Anderson, however, never appealed the district 

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court’s denial of that motion, and Anderson still filed this appeal over a year after 

that denial. Anderson has provided no explanation for why it took him so long to 

file an appeal after it became clear that the government would not file a sentence 

reduction motion and after he had reported to prison. Thus, even if the government 

somehow dissuaded Anderson from filing an appeal while he was assisting with an 

investigation, we would still not conclude that the government forfeited its 

timeliness objection because over a year has passed since Anderson knew that the 

government would not move for a sentence reduction. Importantly too, the 

government’s decision whether to move for a sentence reduction has no bearing on 

whether Anderson had sufficient mental competency to enter a guilty plea.

B. Need for a Competency Hearing

Even if Anderson’s appeal was timely, we would deny his claim—that the 

district court should have sua sponte ordered a competency hearing prior to 

accepting Anderson’s guilty plea—on the merits.2

The Due Process Clause gives every defendant the right not to be tried or 

convicted while incompetent. United States v. Wingo, 789 F.3d 1226, 1235 (11th 

Cir. 2015). “Competence to proceed to trial or to enter a guilty plea requires the 

defendant to possess the capacity to understand the nature and object of the 

 2

“This Court reviews for abuse of discretion a district court’s decision not to order a 

competency hearing prior to trial.” United States v. Perkins, 787 F.3d 1329, 1339 (11th Cir.

2015).

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proceedings against him, to consult with counsel, and to assist in preparing his 

defense.” Id. at 1234–35 (citation omitted) (internal quotation marks omitted).

Under 18 U.S.C. § 4241, the district court has the obligation to sua sponte

order a competency hearing if there is “reasonable cause” to believe that the 

defendant is not competent to enter a guilty plea. 18 U.S.C. § 4241(a); Wingo, 789 

F.3d at 1236. Specifically, § 4241(a) states that the district court “shall” on its own 

motion order “a hearing to determine the mental competency” of a defendant, “if 

there is reasonable cause to believe that the defendant may presently be suffering 

from a mental disease or defect rendering him mentally incompetent to the extent 

that he is unable to understand the nature and consequences of the proceedings 

against him or to assist properly in his defense.” 18 U.S.C. § 4241(a) (emphasis 

added). Prior to such a competency hearing, the district court may order a 

psychiatric or psychological evaluation of the defendant. 18 U.S.C. § 4241(b).

This Court has identified three factors for determining whether the district 

court failed to hold a sua sponte competency hearing: (1) evidence of the 

defendant’s irrational behavior; (2) the defendant’s demeanor before the court; and 

(3) prior medical opinion regarding the defendant’s competence to stand trial or 

enter a guilty plea. See Tiller v. Esposito, 911 F.2d 575, 576 (11th Cir. 1990). 

This analysis “focuses on what the trial court did in light of what it knew at the 

time of the trial or plea hearing.” Id. 

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The district court did not abuse its discretion in (1) finding that Anderson 

was competent to enter a guilty plea and (2) not sua sponte ordering a competency 

hearing. All three Tiller factors support this conclusion, and no factor establishes

reasonable cause to believe that Anderson was incompetent to enter a guilty plea. 

First, Anderson cannot point to any evidence of irrational behavior. 

Anderson points to his schizophrenia, but there is no indication in the record that 

his schizophrenia is not reasonably controlled by his medication. Nor is there any 

evidence suggesting that his schizophrenia inhibited Anderson’s ability either to 

assist his attorney or to understand the plea agreement, its consequences, and the 

charges against him. Indeed, at the plea hearing, Anderson discussed his 

schizophrenia diagnosis with the district court and assured the district court that 

neither his schizophrenia nor his medication prevented him from understanding the 

court proceeding. What is more, Anderson’s attorney agreed that Anderson 

understood both what was going on with his plea agreement and the charges 

against him. Similarly, the PSI noted Anderson’s mental health condition but 

provided no evidence of ongoing irrational behavior. The only evidence of 

irrational behavior mentioned in the PSI was that Anderson began hearing voices 

at age 20, which would have been in the early nineties, 20 years before the district 

court sentenced Anderson in this case and ten years before Anderson was 

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prescribed anti-psychotic medication. No evidence suggested that Anderson 

continued hearing voices in 2013.

Second, Anderson behaved normally and properly during the entire plea 

hearing. Anderson answered all of the district court’s questions directly and 

succinctly. Anderson did not act out or disrupt the proceedings in any way. 

Indeed, the district court allowed Anderson to stay out on bond pending his 

sentencing hearing, and Anderson continued to cooperate with the government.

Third, there was no prior medical opinion stating that Anderson was 

incompetent to enter a guilty plea. The probation office even had a doctor examine 

Anderson, and that doctor returned no such finding. Instead, the doctor 

recommended that Anderson attend monthly psychiatric medication management 

therapy sessions. Anderson complied with that recommendation and attended such 

a session prior to the plea hearing. Based on these three factors, the district court 

did not abuse its discretion when it did not sua sponte order a competency hearing 

or evaluation of Anderson.

This Court’s decision in United States v. Diaz, 630 F.3d 1314 (11th Cir. 

2011), does not help Anderson. In Diaz, this Court affirmed a district court’s order 

allowing the government to involuntarily medicate defendant Michael Diaz in 

order to restore him to competency to stand trial. Id. at 1335-36. Diaz was 

psychotic and substantially impaired and had at various times been diagnosed with 

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undifferentiated schizophrenia, paranoid schizophrenia, and chronic paranoid 

schizophrenia. Id. at 1317-29. Diaz refused to cooperate with the medical staff, 

participate in therapy sessions, take medication, or undergo any other type of 

treatment. Id. at 1320. In stark contrast, Anderson has never been diagnosed as 

psychotic or substantially impaired; he cooperated with the probation office’s 

doctor and attended a therapy session; and he voluntarily takes his anti-psychotic

medication. 

Diaz does not stand for the proposition that anyone with schizophrenia is 

incompetent to stand trial or enter a guilty plea. To the contrary, this Court in Diaz

concluded that, based on the medical evidence presented in that case, antipsychotic medication could render a defendant with schizophrenia competent to 

stand trial or enter a guilty plea. Id. at 1332-33. Diaz thus does not support 

Anderson’s claim.

III. CONCLUSION

Based on the foregoing reasons, we conclude that Anderson’s appeal is

untimely and that the district court properly accepted Anderson’s guilty plea. We

therefore affirm Anderson’s convictions.

AFFIRMED.

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