USA v. Desera Allen

Filing

OPINION: the district court's judgment is AFFIRMED, decision not for publication. Damon J. Keith, Authoring Circuit Judge; David W. McKeague, Circuit Judge and Helene N. White, Circuit Judge.

Case: 15-5785

Document: 35-2

Filed: 12/19/2016

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0686n.06
No. 15-5785

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,

)
)
)
)
)
)
)
)
)
)

Plaintiff-Appellee,
v.
DESERA JADE ALLEN,
Defendant-Appellant.

Dec 19, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF TENNESSEE

BEFORE: KEITH, McKEAGUE, and WHITE, Circuit Judges.
DAMON J. KEITH, Circuit Judge. This is a direct appeal of the criminal judgment
rendered against Defendant-Appellant Desera Jade Allen (“Allen”) by the United States District
Court for the Eastern District of Tennessee. Specifically, Allen appeals her conviction for
Conspiracy to Distribute and Possession with Intent to Distribute a-PVP, a Schedule I Controlled
Substance Analogue. Allen requests that the case be remanded for the district court to make a
retroactive determination of her competency to enter a guilty plea. Alternatively, Allen requests
remand for resentencing because the district court purportedly failed to adequately “consider and
address” her mental health before imposing her sentence. WE AFFIRM.
I.

Background

On July 15, 2014, Allen agreed to plead guilty to the sole count in the indictment:
Conspiracy to Distribute and Possession with Intent to Distribute a-PVP, a Schedule I Controlled
Substance Analogue, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(C).”

Case: 15-5785

Document: 35-2

Filed: 12/19/2016

Page: 2

No. 15-5785, USA v. Desera Allen
Thereafter, a change of plea hearing was held on July 24, 2014. At the hearing, the
district court explained to Allen that before accepting her guilty plea, there were a number of
questions that the court needed to ask her, in order to assure the court that Allen’s plea was valid.
Among those questions, the district court inquired as to whether Allen had ever been treated for
any mental illness, to which she responded “[j]ust anxiety.” The district court also asked Allen
whether she understood what was happening at the hearing, to which she responded
affirmatively. Further, the district court asked Allen’s attorney whether he considered Allen to be
competent to enter a guilty plea, to which he answered affirmatively. Additionally, Allen and her
attorney both stated that Allen understood the charge against her, the elements of that charge,
and the legal meanings of the terms used in the indictment. Allen also told the court that she
understood the rights she would be giving up by entering into a plea of guilty. At the conclusion
of the change of plea hearing, the district court determined that – based on its observations of
Allen and her responsiveness, and her answers to the questions posed by the court – Allen was
competent to plead guilty, and that she knowingly and voluntarily offered to plead guilty.
Thereafter, the court accepted Allen’s guilty plea.
On October 16, 2014, the presentence report was filed. Among other things, the report
indicated that: Allen’s total offense level is 31, she is a career offender, her criminal history
category is VI, and her advisory guideline range is 188 to 235 months.
Four months following the change of plea hearing, Allen’s attorney filed a motion to
withdraw as counsel due to irreconcilable differences arising between him and Allen.
Subsequently, Allen retained new counsel who then filed a motion to withdraw the plea
agreement on Allen’s behalf. However, shortly thereafter, her attorney sought withdrawal of the
motion, which the district court granted.

2

Case: 15-5785

Document: 35-2

Filed: 12/19/2016

Page: 3

No. 15-5785, USA v. Desera Allen
Thereafter, Allen filed a sentencing memorandum and motion for downward departure, in
which she disclosed that while incarcerated awaiting sentencing, she was diagnosed with, and
started treatment for, bipolar disorder. She also claimed that she has a family history of mental
illness and that her addiction to narcotics stems from her lack of mental health treatment for
bipolar disorder. Allen requested that the district court “consider her mental health in
establishing her sentence, and grant her a downward departure from her current guideline range.”
Prior to sentencing, the government filed its own motion for downward departure and
sentencing memorandum, recommending a two-level reduction in Allen’s offense level based on
her cooperation, and a departure range of 151 to 188 months.
At the sentencing hearing, the district court granted the government’s motion for
downward departure and denied Allen’s motion for downward departure. This direct appeal
followed shortly thereafter.
II.

Allen’s Competency to Enter a Guilty Plea

In this timely appeal, Allen first asserts that the district court erred by failing to revisit,
sua sponte, the issue of Allen’s competency when it was made aware that Allen is a person with
bipolar disorder. Because Allen did not raise this argument in the district court, we review for
plain error. United States v. Maxwell, 569 F. App’x 361, 364 (6th Cir. 2014); United States v.
Denkins, 367 F.3d 537, 545 (6th Cir. 2004).
A defendant or the Government “may file a motion for a hearing to determine the mental
competency of the defendant.” 18 U.S.C. § 4241(a). The court must grant the motion, or order a
hearing sua sponte, “if there is reasonable cause to believe that the defendant may presently be
suffering from a mental disease or defect rendering [her] mentally incompetent to the extent that
[she] is unable to understand the nature and consequences of the proceedings against [her] or to

3

Case: 15-5785

Document: 35-2

Filed: 12/19/2016

Page: 4

No. 15-5785, USA v. Desera Allen
assist properly in [her] defense.” Id. A district court has the duty “to inquire into a defendant’s
competency whenever there is reasonable cause to believe that the defendant is incompetent to
stand trial.” Maxwell, 569 F. App’x at 364 (citing United States v. White, 887 F.2d 705, 709 (6th
Cir. 1989)) (internal quotation omitted).
Allen asserts that the district court should have ordered a competency hearing because
she is an individual living with bipolar disorder. She does not argue that she was incompetent,
but instead argues that because she is living with a “long-standing” mental illness, the district
court should have inquired into whether she was competent to enter her guilty plea.
Allen provides no medical evidence demonstrating that the mental illness was longstanding. Instead, she asserts that the statement her attorney made at the sentencing hearing, “I
believe my client has been mentally ill for years,” should have “raised the red flag concerning
Ms. Allen’s competency at the time she entered her plea.” She has not put forth any evidence
that establishes that her attorney is qualified to make a mental health determination, nor has she
provided any evidence from a medical or mental health professional indicating that she suffered
from mental illness for years. All that is known is that after entering a guilty plea, Allen was
diagnosed with bipolar disorder. Living with bipolar disorder, by itself, does not automatically
trigger a district court’s obligation to sua sponte order a competency hearing. Allen cites no
authority supporting her assertion that this is the standard that the district court must apply.
The district court must order a competency hearing when there is reasonable cause to
believe that the defendant is incompetent to stand trial. Maxwell, 569 F. App’x at 364. Living
with bipolar disorder, by itself, does not support a showing of reasonable cause. For the district
court to have had a duty to order a competency hearing, Allen would have needed to exhibit
behavior demonstrating that she lacked “either a sufficient present ability to consult with [her]

4

Case: 15-5785

Document: 35-2

Filed: 12/19/2016

Page: 5

No. 15-5785, USA v. Desera Allen
lawyer with a reasonable degree of rational understanding or a rational as well as factual
understanding of the proceedings against [her].” Id. (citing United States v. Miller, 531 F.3d 340,
350 (6th Cir. 2008)) (further citations and internal quotations omitted).
Allen asserts that the fact that her counsel withdrew from representation, claiming
“irreconcilable differences,” and that she filed a motion to withdraw her plea, and subsequently
withdrew said motion, is demonstrative of the fact that she was “troubled or confused about her
understanding of her plea and its consequences.” She asserts that “fits and starts of this kind”
should have given the district court “reasonable concern that such a pattern of behavior was
consistent with an individual in the manic throes of untreated bipolar disorder.” Allen’s
arguments are without merit. Her assertion that her change in counsel and brief attempt at
changing her plea evinces that she was in the “manic throes” of untreated bipolar disorder are not
supported by expert testimony, any other form of medical evidence, or case law. Further,
“strained relationships” with attorneys do not render a defendant incompetent. See United States
v. Dubrule, 822 F.3d 866, 880 (6th Cir. 2016).
Next, Allen asserts that her family’s history of mental illness and suicide should have
casted doubt on her own competency. The competency of her family is not pertinent, given that
there is no evidence that her family’s mental health has a bearing on or correlates with her own.
The record establishes that Allen was lucid and rational throughout the proceedings, and
that she did not “exhibit irrational behavior at the plea hearing, or otherwise act in a way that
called [her] competency into question.” Cf. Maxwell, 569 F. App’x at 365 (citing Denkins,
367 F.3d at 547). Both Allen and her attorney indicated that her attorney had explained the
underlying facts, applicable law, and her options as to pleading guilty or proceeding to trial. She
indicated to the court that she understood the charges against her, that she was pleading guilty to

5

Case: 15-5785

Document: 35-2

Filed: 12/19/2016

Page: 6

No. 15-5785, USA v. Desera Allen
the charge, and that she understood the consequences of pleading guilty. Cf. id. at 364. Thus,
under these circumstances, the district court did not abuse its discretion by failing to order a
competency hearing when it became aware that Allen was diagnosed with bipolar disorder.
III.

Reasonableness of Allen’s Sentence

“Sentences in criminal cases are reviewed for procedural and substantive
reasonableness.” United States v. Freeman, 640 F.3d 180, 185 (6th Cir. 2011) (citation omitted).
“This review is conducted under the deferential abuse-of-discretion standard.” Id. Allen argues
that his sentence was both procedurally and substantively unreasonable.
A. Procedural Unreasonableness
For a sentence to be procedurally reasonable, we must ensure that the district court:
(1) properly calculated the applicable advisory Guidelines range; (2) considered
the other [18 U.S.C.] § 3553(a) factors as well as the parties’ arguments for a
sentence outside the Guidelines range; and (3) adequately articulated its reasoning
for imposing the particular sentence chosen, including any rejection of the parties’
arguments for an outside-Guidelines sentence and any decision to deviate from
the advisory Guidelines range.
United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007).
With respect to the sentence imposed, Allen asserts that the sentence is procedurally
unreasonable because the district court failed to “adequately address” her mental illness as part
of her “history and characteristics,” as required by 18 U.S.C. § 3353(a), and dismissed her
mental illness as a “non-issue.” With respect to sentencing a defendant, this circuit has stated the
following:
When sentencing a defendant, the district court “‘must make an individualized
assessment based on the facts presented’ and upon a thorough consideration of all
of the § 3553(a) factors.” Bolds, 511 F.3d at 580 (quoting Gall v. United States,
552 U.S. 38, 50 (2007). The district court commits procedural error where it fails
to set forth a statement of reasons sufficient to satisfy the appellate court that it
has considered the parties' arguments and has a reasoned basis for imposing a
particular sentence. Id.; see also Rita v. United States, 551 U.S. 338, 356 (2007).

6

Case: 15-5785

Document: 35-2

Filed: 12/19/2016

Page: 7

No. 15-5785, USA v. Desera Allen
The court need not “make specific findings related to each of the factors
considered.” Bolds, 511 F.3d at 580 (quoting United States v. McClellan,
164 F.3d 308, 310 (6th Cir. 1999)). However, “when ‘a defendant raises a
particular argument in seeking a lower sentence, the record must reflect both that
the district judge considered the defendant’s argument and that the judge
explained the basis for rejecting it.’ ” United States v. Jones, 489 F.3d 243, 251
(6th Cir. 2007) (quoting United States v. Richardson, 437 F.3d 550, 554 (6th Cir.
2006)); see also Simmons, 587 F.3d at 360 (“A sentencing judge must explicitly
consider factors that are raised by the defendant or that are otherwise especially
relevant to the case at bar.”)
United States v. Daniels, 641 F. App’x 481, 488 (6th Cir. 2016) (internal citations updated).
At the sentencing hearing, while considering the history and characteristics under
18 U.S.C. § 3353(a), the district court stated that “[t]he court must recognize the mental
condition, and we will address that later.” The next time Allen’s mental health was addressed
was when the court imposed its sentence, during which the district court stated that “[t]he court
will recommend that [the defendant] receive a physical and a mental health evaluation and
needed treatment while in the custody of the bureau of prisons,” and further, that upon release
from imprisonment, “[the defendant] shall participate in a program of mental health treatment as
directed by the probation officer until such time as [the defendant is] released from the program.”
After the district court imposed its sentence, Allen’s attorney stated the following to the
court:
Your honor, just an inquiry. When you were going over the relevant sentencing
factors, you stated that you would address the mental health issue, I’m not sure
the court addressed the mental health issue, just as it pertained to the sentence. I
think the court just addressed it as to her incarceration, but I didn’t know if the
court was going to go into anything further in sentencing regarding her mental
health, so that’s the inquiry I have for the court.
(R. 234, Hr’g Tr. at Pg. ID 1117.)

7

Case: 15-5785

Document: 35-2

Filed: 12/19/2016

Page: 8

No. 15-5785, USA v. Desera Allen
The government thereafter clarified defense counsel’s statement, stating that “I
think what [counsel] is referring to is the motion for variance, to be clear for the record,”
to which the district court responded:
Well, the motion is denied. We understand that [the defendant] has mental
problems. . . . but under the circumstances, you know, it was quite clear that
nobody filed a motion for a mental evaluation in this case . . . so that’s a non-issue
as far as I’m concerned. The people I had in court today, most of them had mental
problems, and I think you said that more than half the people in the federal
penitentiary have mental problems . . . I don’t doubt that.
(R. 234, Hr’g Tr. at Pg. ID 1117–18.)
Allen asserts that the district court’s statements demonstrate that it ignored her
history and characteristics as they pertain to her mental health. Allen’s assertion is
incorrect. The district court’s sentence was procedurally reasonable because the record
reflects that the district court’s individualized assessment did not ignore Allen’s mental
health. Rather, the record reflects that the district court considered Allen’s argument for
further variance based upon her mental health, and in rejecting that argument remarked
on the commonness of mental illness among federal offenders, implying the court did not
consider Allen’s mental illness to be exceptional enough to justify a lower sentence.1
When read in its full context, the district court’s statement does not demonstrate
that it ignored Allen’s diagnosis of bipolar disorder, nor does it suggest that the court
considered her disorder irrelevant. Rather, we understand the court’s explanation to mean
that while taking Allen’s mental health into account, all that was known was that she was
recently diagnosed with bipolar disorder, and given that Allen had already received a
downward departure and a sentence below the suggested guidelines, a downward
1

We also read the district court’s explanation in the context of the guidelines’ policy statement that “[m]ental health
and emotional conditions may be relevant in determining whether a departure is warranted, if such conditions,
individually or in combination with other offender characteristics, are present to an unusual degree and distinguish
the case from the typical cases covered by the guidelines.” U.S.S.G. 5H1.3 (emphasis added).

8

Case: 15-5785

Document: 35-2

Filed: 12/19/2016

Page: 9

No. 15-5785, USA v. Desera Allen
variance based solely on the fact that she was recently diagnosed with bipolar disorder
was unwarranted. In noting that no mental evaluation had been requested, the court
essentially explained that it was provided no medical evidence demonstrating that Allen’s
bipolar disorder had any influence on her criminal conduct. Thus, given that no further
details about Allen’s diagnosis were presented to the court, it did not abuse its discretion
in denying further departure or variance.
The record further demonstrates that the district court considered Allen’s
arguments about her mental health, and made an individualized assessment, when it
recommended that Allen should receive a mental health evaluation and needed treatment
for her mental health issues while incarcerated. Further, the district court ordered Allen to
participate in a program of mental health treatment as directed by the probation officer
upon release from incarceration. Accordingly, the district court did not abuse its
discretion with respect to the procedural reasonableness of Allen’s sentence, given that
the district court explicitly considered the mental health argument she raised in seeking a
lower sentence.
B. Substantive Reasonableness
When reviewing the substantive reasonableness of a sentence under an abuse-ofdiscretion standard, we “‘tak[e] into account the totality of the circumstances, including the
extent of any variance from the Guidelines range.’” United States v. Sandoval, 501 F. App’x 491,
492 (6th Cir. 2012) (quoting Gall v. United States, 552 U.S. 38, 51 (2007). “The essence of a
substantive-reasonableness claim is whether the length of the sentence is ‘greater than necessary’
to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” Id. (quoting United States v.
Tristan–Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010)). “For a sentence to be substantively

9

Case: 15-5785

Document: 35-2

Filed: 12/19/2016

Page: 10

No. 15-5785, USA v. Desera Allen
reasonable, it must be proportionate to the seriousness of the circumstances of the offense and
offender, and sufficient but not greater than necessary, to comply with the purposes of
§ 3553(a).” United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008) (internal citation and
quotation omitted).
Allen asserts that her sentence is substantively unreasonable because the district court
purportedly “failed to recognize that the nature and impact of mental illness in her circumstances
necessitated a lesser sentence.” Specifically, she states that her “bipolar diagnosis while
incarcerated prior to sentencing, as well as her family’s unfortunate history of mental illness, cast
a pall over the proceedings that the district court failed to fully appreciate.” Allen’s argument is
unavailing.
Based upon a base offense level of 31, a criminal history category of VI, and her status as
a career offender, Allen’s sentencing range was 188 to 235 months of imprisonment. But after
granting the government’s motion for a downward departure, the district court sentenced Allen to
151 months of imprisonment. Allen’s assertion that her below-guidelines sentence is
unreasonably severe, because it should have been shorter, does not give rise to a presumption of
unreasonableness. Curry, 536 F.3d at 573. In fact, this court has held that “it follows from simple
logic that [a] below-Guidelines sentence is presumed . . . not to be unreasonably severe.” United
States v. Bailey, 264 F. App’x 480, 485 (6th Cir. 2008) (emphasis in original).
The district court recognized Allen’s mental health diagnosis, made note of her troubled
upbringing, and accordingly ordered mental health treatment and imposed a sentence at the low
end of the departure range, making readily apparent to this court that the district court’s sentence
was proportionate to the seriousness of the circumstances of the offense and offender, and
sufficient but not greater than necessary, to comply with the purposes of § 3553(a).

10

Case: 15-5785

Document: 35-2

Filed: 12/19/2016

Page: 11

No. 15-5785, USA v. Desera Allen
Allen’s argument that the district court’s sentence was substantively unreasonable
because it failed to consider “the impact of her mental illness in her circumstances” when
imposing its sentence, is unpersuasive because Allen provided the district court with no expert
testimony, or any form of medical evidence demonstrating that her mental illness was longstanding or that her disorder had an impact on her criminal conduct. Thus, for the
abovementioned reasons, we conclude that the district court did not abuse its discretion in not
awarding further variance.
IV.

Conclusion

Accordingly, we AFFIRM the district court’s judgment.

11