United States v. Perkins

In United States v. Perkins, —- F.4th —-, No. 22-50987 (5th Cir. Apr. 25, 2024), the Fifth Circuit affirmed the defendant’s conviction but vacated his sentence because the district court failed to sufficiently explain its sentence, which was an upward variance from the applicable Sentencing Guideline range. On the other hand, the Fifth Circuit affirmed the district court’s finding that Perkins had been competent to proceed.

Issue 1: The district court should have analyzed Perkins’ competence under a two-step analysis: (1) what is the nature of the defendant’s mental illness, and (2) whether that illness makes him incompetent. Here, the court didn’t do so, but that was not sufficient grounds to reverse its competency determination.

On the merits of Perkins’ competency, the Fifth Circuit noted that “special consideration should generally be given to the opinions of defense counsel” who often has “the best-informed view of the defendant’s ability to participate in his defense.” See Medina v. California, 505 U.S. 437, 450 (1992). Here, Perkins’ lawyers “did not offer an unequivocal declaration of his incompetency,” and there were “medical experts on both sides of the issue.” On this record, the district court’s finding was not “clearly arbitrary or unwarranted.” United States v. Joseph, 333 F.3d 587, 589 (5th Cir. 2003).

Of note, the court explained that “[r]esistance to plea deals, vague assertions that [the defendant] was reluctant to help the defense, and struggles in communication are quotidian problems in the world of criminal defense,” and they did not prove incompetence.

Issue 2: Perkins’ Presentence Investigation Report (“PSR”) calculated a Sentencing Guidelines range of 210 to 240 months in prison. The district court first ordered 210 months on each of Perkins’ nine counts of conviction “to run consecutively,” but the court also said it was not “depart[ing] from the recommended sentence.” On the other hand, at the end of the hearing, the court said “the Court does vary upward … from the low end of the guidelines and run consecutively Counts I through IX.”

The Fifth Circuit found that sentence procedurally unreasonable and vacated for resentencing. A few parts of its decision are worth noting. First, the defendant had properly preserved this issue by filing his objection to the variance in a timely Rule 35 motion after sentence had been pronounced. Rule 35 is “an appropriate vehicle to preserve error” when the district court committed “an obvious error or mistake … [that] would almost certainly result in a remand of the case to the trial court for further action.” It would not, however, have been appropriate merely to contest “the exercise of the court’s discretion with regard to the application of the sentencing guidelines.”

Second, when a district court varies above the Guideline range, it must adequately explain its chosen sentence. If it does not, the Fifth Circuit will remand unless that error is harmless. In this circuit, it would be enough for the court to check “four supporting § 3553(a) factors” in the “Statement of Reasons” form and explain[] that the court “opted . . . for an above guidelines sentence driven by the § 3553(a) factors.” United States v. Conlan, 786 F.3d 380, 394–95 (5th Cir. 2015). It may also be enough to say that the court considered the parties’ arguments and the information in the PSR, although context matters there. See United States v. Bonilla, 524 F.3d 647, 657 (5th Cir. 2008), overruled on other grounds by United States v. Reyes Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc).

It is not enough for the district court to make a “single passing reference to § 3553(a)” or to say it was varying "based upon the government motion for upward departure.” And this case “plainly falls into the latter camp.” During the hearing, the court made inconsistent statements about whether it meant to vary upward, and after sentencing, its Statement of Reasons only said “Other … all reasons stated in open court” as the reason for a variance. Critically, the court never provided “an explanation with specific reasons why an upward variance was justified.”

Finally, “[t]he magnitude of the sentence impacts what counts as an adequate explanation,” and this was not a sufficient explanation for a 137-year sentence. In the most memorable line of this opinion written by Judge Jerry E. Smith, the court wrote that “[w]hat is good for the goose, is good for the gander—but not necessarily a pterodactyl.”