[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 09-15283         ELEVENTH CIRCUIT
                                                   OCTOBER 25, 2010
                         Non-Argument Calendar
                       ________________________        JOHN LEY
                                                        CLERK

                 D.C. Docket No. 09-00103-CR-J-25TEM

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                  versus

LEON GLASPY,
a.k.a. Ray,

                                                        Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                            (October 25, 2010)

Before TJOFLAT, MARTIN and FAY, Circuit Judges.

PER CURIAM:
      Leon Glaspy pled guilty to all counts of a three-count indictment—two

counts of distributing cocaine base and one count of possessing cocaine base with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1)—and the district court

sentenced him to concurrent prison terms of 188 months. He appeals his

convictions on two grounds: (1) the district court plainly erred when it failed to

sua sponte conduct a hearing to determine whether he was competent to enter his

guilty pleas; (2) the magistrate judge’s misstatements during his change-of-plea

hearing concerning the length of the term of supervised release that he faced

affected his substantial rights. He appeals his sentences on the grounds that they

are procedurally and substantively unreasonable. We first address Glaspy’s

challenges to his convictions, then address the challenges to his sentences.

                                          I.

                                         A.

      We review a district court’s failure to sua sponte order a hearing on a

defendant’s competency to plead guilty or stand trial for abuse of discretion.

United States v. Williams, 

, 820 (5th Cir. 1972). This standard

applies even where the defendant did not request a competency hearing. 

involved an earlier version of the mental competency statute,

both that version and the current version impose on the district court the same duty


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to inquire into a defendant’s mental competency. See id.; United States v.

Izquierdo, 

, 1278 n.8 (11th Cir. 2006) (“In 1984, 18 U.S.C. § 4244

was replaced by 18 U.S.C. § 4241.”); 18 U.S.C. § 4241.

      The right not to plead guilty while incompetent is one of the most

fundamental constitutional rights. Drope v. Missouri, 

, 171-72, 

, 904, 

(1975). The district court must sua sponte order a

hearing to determine the mental competence 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); see Pate v. Robinson,

, 385, 

, 842, 

(1966) (holding that a trial

court must conduct, sua sponte, a competency hearing when the information

known to the trial court at the time of the trial or plea is sufficient to raise a bona

fide doubt regarding the defendant’s competence). A defendant is competent to

plead guilty if he “has sufficient present ability to consult with his . . . lawyer with

a reasonable degree of rational understanding and . . . has a rational as well as

factual understanding of the proceedings.” Tiller v. Esposito, 

, 576

(11th Cir. 1990) (citation and internal quotations omitted).


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      We consider three factors in determining whether the district court denied

the defendant’s right to procedural due process by failing to sua sponte conduct a

competency hearing: (1) whether the defendant evidenced irrational behavior

before the court; (2) whether his demeanor before the court indicated a lack of

competence to proceed; and (3) whether the court was aware of any prior medical

opinion regarding the defendant’s competence to stand trial. 

, 95 S.Ct. at 908. The failure of a defendant or his counsel to raise the

competency issue is “persuasive evidence that no Pate violation occurred.” Reese

v. Wainwright, 

, 1092 (5th Cir. 1979) (involving a habeas corpus

petition). Mental retardation alone does not make a person incompetent to stand

trial. Atkins v. Virginia, 

, 318, 

, 2250, 

(2002).

      In this case, Glaspy has not shown that the district court abused its

discretion in failing to sua sponte order a competency hearing. The record

contains no evidence indicating that he behaved irrationally, that his attorney

requested a competency hearing, or that the court was aware of a prior medical

opinion regarding his competence to stand trial.

                                         B.




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       Because Glaspy did not object to the colloquy the magistrate judge

conducted pursuant to Federal Rule of Criminal Procedure 11, we review the

magistrate judge’s misstatement for plain error. United States v. Bejarano, 

, 1306 (11th Cir. 2001). To establish plain error, Glaspy “must show

that there is (1) error (2) that is plain and (3) that affect[s] substantial rights.”

United States v. Lejarde-Rada, 

, 1290 (11th Cir. 2003) (internal

quotations omitted). If those conditions are met, we have the discretion to notice

the forfeited error only if it seriously affected the fairness, integrity, or public

reputation of judicial proceedings. 

the burden of showing that he

was prejudiced by a clear and obvious error that affected his substantial rights.

.

       To establish prejudice in the context of a Rule 11 error, Glaspy must show a

reasonable probability that, but for the error, he would not have entered the plea.

United States v. Dominguez Benitez, 

, 83, 

, 2340, 

(2004). We consider the record as a whole in assessing whether a

Rule 11 error affected the defendant’s substantial rights. United States v. Vonn,

, 59, 

, 1046, 

(2002). Even if Glaspy

establishes prejudicial error, we may not remedy that error unless it “seriously

affects the fairness, integrity, or public reputation of judicial proceedings.”


                                             5
Puckett v. United States, 556 U.S. ___, ___, 

, 1429, 

(2009) (alteration, internal quotations, and citation omitted).

      In United States v. Brown, the defendant was improperly advised by both a

written plea agreement and the district court that he faced a maximum three-year

term of supervised release, rather than five years to life. 

, 1345

(11th Cir. 2009), cert. denied, 

(2010). He ultimately received a life

term of supervised release. 

facts, we held that, because the

incorrect term of supervised release had been corrected in the PSI, and the

defendant had not objected to the PSI’s statement concerning his statutory range of

supervised release, the defendant’s conduct indicated that his substantial rights

were not harmed by the error. 

      Rule 11 requires the court to inform a defendant of, among other things,

“any mandatory minimum penalty.” Fed. R. Crim. P. 11(b)(1)(I). The mandatory

minimum terms of supervised release were three years for Counts One and Two,

and four years for Count Three. 21 U.S.C. § 841(b)(1)(B), (b)(1)(C).

      Although the magistrate judge affirmatively misadvised Glaspy about the

term of supervised release that he faced, Glaspy has not shown that this error

affected his substantial rights where he had notice of the correct term from his




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arraignment hearing, from the government’s notice of maximum penalties, and

from the presentence investigation report.

                                         II.

      We review a sentence imposed by a district court for reasonableness, using

an abuse of discretion standard. Gall v. United States, 

, 51, 

, 597, 

(2007). The burden of proof is on the party

challenging the reasonableness of the sentence. United States v. Thomas, 

, 1351 (11th Cir. 2006).

      In reviewing the reasonableness of a sentence, we “must first ensure that the

district court committed no significant procedural error, such as failing to calculate

(or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence.”

, 128 S.Ct. at 597. The district court is not required to

specifically discuss each § 3553(a) factor, provided that the court acknowledges

that it considered all of the factors. United States v. Talley, 

, 786

(11th Cir. 2005). However, the sentencing judge “should set forth enough to

satisfy the appellate court that he has considered the parties’ arguments and has a




                                          7
reasoned basis for exercising his own legal decisionmaking authority.” Rita v.

United States, 

, 356, 

, 2468, 

(2007).

      After determining that a sentence is procedurally reasonable, we must

determine whether the sentence imposed is substantively reasonable based on the

factors in 18 U.S.C. § 3553(a). 

, 128 S.Ct. at 597. These

factors include, among other things, the nature and circumstances of the offense;

the history and characteristics of the defendant; the need for a sentence to reflect

the seriousness of the offense, promote respect for the law, and provide just

punishment for the offense; the need to deter criminal conduct; the need to avoid

unwarranted sentencing disparities between similarly situated defendants; and the

advisory guideline range. 18 U.S.C. § 3553(a). The district court shall impose a

sentence that is sufficient, but not greater than necessary, to comply with the

purpose of these factors. See 

recognized that “there is a range of

reasonable sentences from which the district court may choose.” 

. We “will defer to the district court’s judgment regarding the weight given

to the § 3553(a) factors unless the district court has made a clear error of

judgment.” United States v. Gonzalez, 

, 1324 (11th Cir. 2008)

(internal quotation omitted), cert. denied, 

(2009).




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      Glaspy’s sentences are procedurally reasonable because the district court,

inter alia, adequately explained its basis for denying Glaspy’s request for a

variance, noting that the facts of the case did not justify a departure, that Glaspy’s

situation already had been dealt with as best it could by the system, and that

Glaspy previously had been sentenced for drug trafficking. Glaspy’s sentences

also are substantively reasonable given the fact that his prior incarcerations did not

deter his drug trafficking and he repeatedly returned to committing crime after

being released from prison.

      Glaspy’s convictions and sentences are

      AFFIRMED.




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