United States v. Perkins

99 F.4th 804

UNITED STATES of America, Plaintiff—Appellee, v. Thomas Scott PERKINS, Defendant—Appellant.

No. 22-50987

United States Court of Appeals, Fifth Circuit

FILED April 25, 2024

Appeal from the United States District Court for the Western District of Texas, USDC No. 4:20-CR-388-1, Walter David Counts, III, U.S. District Judge

Joseph H. Gay, Jr., Elizabeth Berenguer (argued), Margaret Mary Embry, Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff—Appellee.

Carl Richard Hennies (argued), Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant—Appellant.

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 (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 comfort 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 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 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 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 couns...