United States of America v. Abraham Denkins, Ii

*The Honorable Gerald E. Rosen, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0129P (6th Cir.)
File Name: 04a0129p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ABRAHAM DENKINS, II,
Defendant-Appellant.
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No. 01-5881
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 00-00026—Jennifer B. Coffman, District Judge.
Submitted: August 5, 2003
Decided and Filed: May 6, 2004
Before: BOGGS, Chief Judge; RYAN, Circuit Judge;
ROSEN, District Judge.*
2 United States v. Denkins No. 01-5881
_________________
COUNSEL

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No. 01-5881 United States v. Denkins 3
ON BRIEF: Melvin Houston, Detroit, Michigan, for
Appellant. Charles P. Wisdom, Jr., ASSISTANT UNITED
STATES ATTORNEY, Lexington, Kentucky, for Appellee.
_________________
OPINION
_________________
ROSEN, District Judge.
I. INTRODUCTION
Defendant/Appellant Abraham Denkins was charged in a
three-count indictment for his alleged role in a drug
conspiracy. Specifically, the Government alleged that on
May 5, 2000, Defendant delivered approximately 12 grams of
cocaine base to a witness cooperating with the Government,
and that Defendant accepted $100 from a co-defendant for
completing this transaction. The indictment charged
Defendant with conspiracy to distribute and to possess with
intent to distribute crack cocaine, distribution of cocaine base,
and travel in interstate commerce to facilitate narcotics
trafficking.
Defendant entered a plea of nolo contendere to each of
these three charges. Shortly before he was to be sentenced,
however, Defendant filed motions, through new counsel,
seeking to withdraw his plea and be referred for a competency
evaluation. The district court granted the motion for a
competency evaluation but denied the motion to withdraw the
plea pending the completion of the competency evaluation.
The evaluation concluded that Defendant was competent to
plead guilty and participate in sentencing, and Defendant
subsequently withdrew his blanket objection to the
presentence report based on lack of competency. The court
then sentenced Defendant to 120 months’ imprisonment, the
statutory minimum in light of his prior drug convictions.
4 United States v. Denkins No. 01-5881
Defendant now appeals from his conviction and sentence
on three grounds. First, he challenges the district court’s
denial of his motion to withdraw his plea, claiming
substantive and procedural errors in the lower court’s
resolution of this motion. Next, Defendant asserts that his
nolo contendere plea should not have been accepted, where
the district court purportedly failed to adequately ascertain
whether he understood the nature of the charges against him
and the consequences of his plea. Finally, in a separate brief
filed on his own behalf, Defendant challenges the district
court’s enhancement of his sentence based on his prior drug
convictions, contending that the court failed to establish
whether the prior convictions relied upon were
constitutionally sound and valid. For the reasons set forth
below, we affirm Defendant’s conviction and sentence.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Defendant’s alleged role in the charged offenses
The presentence report in this case discloses the following
facts. On May 5, 2000 at around 5:00 p.m.,
defendant/appellant Abraham Denkins arrived at a Holiday
Inn parking lot in Covington, Kentucky with approximately
12 grams of crack cocaine. He delivered the narcotics to a
witness cooperating with the Government, and was given
$540 in cash. Immediately following this exchange,
Defendant was arrested.
Defendant reportedly advised the arresting officers that he
had delivered the drugs at the request of a co-defendant,
Miller Beckham, who had approached him in Cincinnati,
Ohio and offered him $100 to complete the transaction.
Defendant further stated that Beckham and a third defendant,
Jackie Sanders, drove him from Cincinnati to Covington, and
that, along the way, Beckham gave him the narcotics wrapped
in a tissue. Finally, Defendant reported that, upon arriving at
the Holiday Inn parking lot, he entered a vehicle occupied by
the Government’s cooperating witness and delivered the

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No. 01-5881 United States v. Denkins 5
1In one of his pro se submissions to this court, however, Defendant
denies that he delivered any drugs to the Government’s cooperating
witness. Instead, he apparently suggests that he was framed by the
arresting officers.
package of drugs to this individual. In his statement to the
arresting officers, Defendant indicated that he knew he was
delivering drugs, but only became aware of the type of drug
when the cooperating witness opened the package in his
presence.1
B. Procedural History
On May 10, 2000, the grand jury returned a three-count
indictment against defendants Abraham Denkins, Miller
Beckham, and Jackie Sanders. Count One charged the three
Defendants with conspiracy to distribute and to possess with
intent to distribute approximately twelve grams of crack
cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1).
Count Two charged that the defendants had traveled in
interstate commerce to facilitate narcotics trafficking, thereby
violating 18 U.S.C. § 1952(a)(3). Count Three charged that
Defendant Denkins, aided and abetted by his two co-
defendants, had distributed approximately twelve grams of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2. Defendant initially entered a plea of not guilty to
all of these charges.
On June 22, 2000, Defendant moved to be re-arraigned.
U.S. District Judge William O. Bertelsman granted
Defendant’s motion, and on July 13, 2000, Defendant was re-
arraigned before Magistrate Judge J. Gregory Wehrman.
Although Defendant attempted to plead guilty to all of the
charges against him, the Magistrate Judge declined to accept
this plea, finding that Defendant had not provided a factual
6 United States v. Denkins No. 01-5881
2According to the presentence report, Defendant’s plea was refused
because he denied knowing at the time that there were drugs in the
package he had delivered to the hotel parking lot on the date spe cified in
the indictment.
basis for a plea of guilty to the Count One conspiracy
offense.2
Following reassignment of the case to District Judge
Jennifer B. Coffman, Defendant again attempted to withdraw
his initial plea, and instead sought to plead nolo contendere to
all of the charges. At a plea hearing on September 21, 2000,
Judge Coffman asked Defendant a number of questions
bearing upon his competency. (See 9/21/2000 Hearing Tr. at
3-18, J.A. at 76-91.) During the colloquy, Defendant advised
the court that he had sustained a work-related injury several
years earlier, and since that time had suffered from memory
problems, ringing in his ears, and hallucinations. Defendant
also advised the court that he took regular medication for high
blood pressure and for “ringing and voices” in his head. (Id.
at 4-6, J.A. at 77-79.)
Following these initial inquiries, Judge Coffman asked
Defendant whether he understood and could make reasonable
decisions about the case, notwithstanding his medical
conditions and medications. The district judge also asked if
Defendant was satisfied with his attorney’s representation.
Defendant responded affirmatively to both inquiries, and his
attorney, Ruey Newsom, likewise expressed his view that
Defendant was competent.
The district court next advised Defendant of the
consequences of pleading nolo contendere. Judge Coffman
informed Defendant that he could continue to plead not guilty
and the matter would go to trial. The district court also
reminded Defendant that there was no plea agreement with
the Government, and that such an agreement normally would
address the sentence to be imposed. Defendant indicated that
he still wished to proceed, despite the absence of a plea

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No. 01-5881 United States v. Denkins 7
agreement. Judge Coffman then read through each of the
charges against Defendant, and Defendant affirmed that he
understood each count of the indictment.
Finally, Judge Coffman advised Defendant of the
sentencing consequences of his plea. The court indicated that
Count One and Count Three carried mandatory minimum
sentences of ten years in prison and maximum sentences of
life imprisonment, and that Count Two carried a maximum
prison term of five years. Judge Coffman also explained that
Defendant faced a maximum eight-year period of supervised
release following his imprisonment.
Having addressed all of these matters, the district court
revisited certain key points for Defendant’s further
consideration. First, Judge Coffman reminded Defendant that
he would not be permitted to withdraw his plea in the event
that he disagreed with his sentence. Next, the court asked
Defendant to confirm his understanding of everything that
had transpired at the plea hearing, and emphasized that if
Defendant was unsure of this, he could halt the proceeding
and confer with his attorney. Finally, the court addressed the
particular nature of a plea of nolo contendere. Defendant then
entered a plea of no contest to each of the charges, and the
court accepted this plea.
Mr. Newsom subsequently withdrew from the case, and
new counsel was appointed for Defendant at a pre-sentencing
conference on November 16, 2000. On that occasion,
Defendant was asked if he wished to withdraw his nolo plea,
and he responded that he did not. On December 18, 2000,
however, Defendant filed two motions through his new
counsel, seeking to withdraw his plea and requesting a
competency evaluation. In support of these motions, defense
counsel stated that his client’s answers to his inquiries were
“either non-responsive or totally incoherent,” and that
Defendant seemed not to apprehend the nature of the case or
the consequences of his plea. (J.A. at 44-45.) The district
court granted Defendant’s request for a competency
8 United States v. Denkins No. 01-5881
evaluation but denied the motion to withdraw his plea,
pending the findings of the competency evaluation. In
granting the former motion, the court emphasized that the
assessment “should address the question of (1) was defendant
competent when he entered his plea and (2) is he competent
to proceed with sentencing.” (1/18/2001 Order, J.A. at 46.)
As indicated in an addendum to the presentence report, the
Bureau of Prisons referred Defendant for a competency
evaluation, and the resulting report concluded that Defendant
was “competent when he entered his guilty plea and that he is
currently competent to participate in his sentencing.” (J.A. at
117.) Following the completion of this evaluation, the district
court scheduled Defendant’s sentencing for June 21, 2001.
At the sentencing hearing, the district court observed that
defense counsel had objected to the entire presentence report
“on the grounds that you believed that a competency
evaluation should occur.” (6/21/2001 Hearing Tr. at 5, J.A.
at 60.) In light of the completed evaluation, the court asked
whether Defendant wished to withdraw this objection, and
counsel responded that this objection was being withdrawn.
(See id. at 5, J.A. at 60.) After addressing Defendant’s
remaining objections, the district court sentenced Defendant
to the statutory minimum prison term of 120 months on the
first and third counts, and 60 months on the second count,
with these sentences to be served concurrently. Defendant
now appeals.
III. ANALYSIS
As observed earlier, three issues are presented on appeal:
(i) whether the district court properly denied Defendant’s
motion to withdraw his plea; (ii) whether the district court
properly accepted Defendant’s nolo contendere plea; and (iii)
whether Defendant’s prior drug convictions were properly
considered in computing his sentence. We address each of
these matters in turn.

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No. 01-5881 United States v. Denkins 9
A. Defendant Waived Any Objection to the District
Court’s Denial of His Motion to Withdraw His Plea.
As his first issue on appeal, Defendant challenges the
district court’s denial of his motion to withdraw his nolo
contendere plea, claiming substantive and procedural errors
in the lower court’s review of this motion. More specifically,
Defendant argues that his plea should have been withdrawn,
and perhaps not even accepted in the first instance, in light of
his purported lack of competency at the time this plea was
entered. Defendant further asserts that the district court
deviated from the standard adopted in this circuit for
resolving a motion to withdraw a plea. We decline to address
the merits of these contentions because Defendant waived any
right of appeal by expressly abandoning this issue in the court
below.
In United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770
(1993), the Supreme Court addressed the extent of the
appellate courts’ authority to review claims of “plain error”
under Fed. R. Crim. P. 52(b). In resolving this issue, the
Court carefully distinguished between “waiver” and
“forfeiture,” explaining:
The first limitation on appellate authority under Rule
52(b) is that there indeed be an “error.” Deviation from
a legal rule is “error” unless the rule has been waived.
For example, a defendant who knowingly and voluntarily
pleads guilty in conformity with the requirements of Rule
11 cannot have his conviction vacated by the Court of
Appeals on the grounds that he ought to have had a trial.
Because the right to trial is waivable, and because the
defendant who enters a valid guilty plea waives that
right, his conviction without a trial is not “error.”
Waiver is different from forfeiture. Whereas forfeiture
is the failure to make the timely assertion of a right,
waiver is the intentional relinquishment or abandonment
of a known right . . . . Mere forfeiture, as opposed to
10 United States v. Denkins No. 01-5881
waiver, does not extinguish an “error” under Rule 52(b).
Although in theory it could be argued that if the question
was not presented to the trial court no error was
committed by the trial court, hence there is nothing to
review, this is not the theory that Rule 52(b) adopts. If a
legal rule was violated during the District Court
proceedings, and if the defendant did not waive the rule,
then there has been an “error” within the meaning of
Rule 52(b) despite the absence of a timely objection.
Olano, 507 U.S. at 732-34, 113 S. Ct. at 1777 (internal
quotations and citations omitted).
We readily conclude that Defendant did not merely forfeit
his present challenge regarding the motion to withdraw his
plea, but that he has wholly waived any opportunity to contest
the district court’s disposition of this motion. Defendant’s
motion to withdraw his plea and his motion for a competency
evaluation were presented in a single submission to the court
below, with the former motion resting solely on the ground
that Defendant lacked the mental competency to understand
the nature of the proceedings or to knowingly, voluntarily,
and intelligently enter a plea. (See Defendant’s Motion to
Withdraw Plea and Motion for Competency Evaluation, J.A.
at 44-45.) Thus, it cannot be said that Defendant forfeited his
claim of incompetency by failing to assert it in the court
below. To the contrary, he squarely presented this issue,
persuading the district court to grant his request for a
competency evaluation.
Having expressly raised this issue, however, Defendant and
his counsel then proceeded to abandon it. While awaiting a
ruling on Defendant’s motion to withdraw his plea and his
request for a competency evaluation, defense counsel filed an
objection to the presentence report in its entirety, on the
ground that his client was not “competent in any fashion to
understand the proceedings going on around him.”
(12/20/2000 Objections to Presentence Report, J.A. at 115.)
Following the completion of a competency evaluation, in

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No. 01-5881 United States v. Denkins 11
which it was concluded that Defendant was competent at the
time of his plea, the district court scheduled Defendant’s
sentencing for June 21, 2001.
At the sentencing hearing, the court and defense counsel
David Fessler expressly revisited the issue of Defendant’s
competency, with counsel unequivocally stating that he no
longer wished to pursue it:
THE COURT: Now, let me see. Mr. Fessler, you had
at one point objected to the entire [presentence] report,
but I think that was on the grounds that you believed that
a competency evaluation should occur. That having
occurred, do you withdraw your objection?
MR. FESSLER: I withdraw objections to the entire
presentence report, Judge.
(6/21/2001 Hearing Tr. at 5, J.A. at 60.) Defense counsel
then raised a few other objections, but none concerning
Defendant’s competency.
Under analogous circumstances, we have held that this sort
of abandonment of an issue raised by way of motion waives
any right of appeal on that issue. In United States v.
Sheppard, 149 F.3d 458, 461 (6th Cir. 1998), for example, the
defendant had filed a motion to suppress evidence in the
district court, but then withdrew the motion when the
Government disproved its factual predicate. On appeal, the
defendant again sought to argue, albeit under a slightly
different theory, that the district court should have suppressed
the evidence that had been the subject of his motion in the
court below. We held that the defendant “did not forfeit his
suppression argument,” but rather had “waived the argument
by withdrawing his motion to suppress prior to trial.”
Sheppard, 149 F.3d at 461 (footnote omitted). Consequently,
we concluded that we were “without jurisdiction to consider
this argument.” 149 F.3d at 461 (footnote omitted).
12 United States v. Denkins No. 01-5881
3In any event, even if we were to reach the merits of this issue, we
would find no basis to disturb the district court’s ruling denying
Defendant’s motion to withdraw his plea. We review such a decision for
an abuse of discretion. See United States v. Pluta, 144 F.3d 968 , 973 (6th
Cir.), cert. denied, 525 U.S. 916 (1998). As explained, the sole ground
for Defendant’s motion — and his sole substantive argum ent on appeal
— was that he lacked co mpe tency at the time he entered his plea. Yet, the
district court thoroughly explored this subject at the plea hearing,
The circumstances presented here are legally
indistinguishable from those addressed in Sheppard. The sole
basis for Defendant’s motion to withdraw his plea was that he
lacked the competency to enter this plea. When a subsequent
evaluation failed to support this contention, Defendant and his
counsel abandoned their competency-based objection to the
presentence report. In light of this withdrawn objection, the
district court was never called upon to decide whether to
permit Defendant to withdraw his plea on the ground of
incompetency.
We recognize that Defendant did not explicitly abandon his
underlying motion to withdraw his plea, and that the district
court denied this motion, at least as a formal matter. Yet, in
the very same order denying this motion, the district court
granted Defendant’s companion motion for a competency
evaluation. (See 1/18/2001 Order, J.A. at 46.) Having
afforded Defendant the opportunity to explore the underlying
basis for his request to withdraw his plea, the district court
surely would have been willing to revisit the issue of
Defendant’s competency, and hence the validity of his plea,
if the competency evaluation had provided support for
Defendant’s position and Defendant had elected to pursue the
matter at the sentencing hearing. Defendant did not so elect,
however, presumably because the evaluation provided no
such support. This constituted an abandonment of the
competency issue, plain and simple. “Consequently, that
challenge is forever foreclosed, and cannot be resurrected on
this appeal.” United States v. Saucedo, 226 F.3d 782, 787
(6th Cir. 2000), cert. denied, 531 U.S. 1102 (2001).3

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No. 01-5881 United States v. Denkins 13
inquiring repeatedly whether Defendant understood the nature of the
proceeding and the consequences of his plea. Indeed, the court engaged
in this inquiry sua sponte, unpromp ted by any exp licit claim by Defendant
or his counsel that Defendant might not be competent to enter a plea. In
addition, the lower court afford ed D efendant ample opp ortunity to support
his claim of incompetency by granting his request for an evaluation. This
evaluation, of course, confirmed the court’s own initial assessment that
Defendant was competent to enter a plea. Under these facts, we cannot
imagine how the district court could be dee med to have abu sed its
discretion.
Nor are we troubled by the district court’s failure, in its order denying
Defendant’s motion to withdraw his plea, to address each of the several
considerations endo rsed b y this court in United States v. Bash ara, 27 F.3d
1174, 118 1 (6th Cir. 1994 ), cert. denied, 513 U.S. 1115 (1995). As we
have elsewhere exp lained, it is “unnecessary to addre ss each of these
factors” where a defendant fails, at the threshold, to identify any “fair and
just reason” for permitting him to withdraw his plea. United States v.
Bazzi, 94 F.3d 1025, 1027 (6th Cir. 199 6) (citing the “fair and just reason”
standard of former Fed. R. Crim. P. 32(d), now incorporated into Fed. R.
Crim. P. 11(d)(2)(B)). Such is the case here, where the district court
fairly addressed the issue of Defendant’s competency to enter a plea —
and likely would have revisited the issue at sentencing, had Defendant not
abandoned it — and this was the sole reason given by Defendant for
seeking to withdraw his plea.
B. Any Defect in the District Court’s Plea Colloquy Did
Not Rise to the Level of Plain Error, But Instead Was
Harmless.
Apart from contending that the district court erred in not
allowing him to withdraw his plea, Defendant argues that his
plea should have been rejected in the first instance. In
particular, Defendant asserts that the district court’s plea
colloquy did not adequately ensure that Defendant understood
the nature of the charges against him and the consequences of
his plea. Because Defendant failed to object to this plea
colloquy, we review this matter only for plain error. See
United States v. Vonn, 535 U.S. 55, 59, 122 S. Ct. 1043, 1046
(2002).
14 United States v. Denkins No. 01-5881
The substantive basis for this challenge, once again, is that
Defendant’s mental and emotional problems should have
prevented the district court from accepting his plea, and
instead should have led the court to order a competency
evaluation. By statute, a defendant or the Government “may
file a motion for a hearing to determine the mental
competency of the defendant,” and such a motion must be
granted “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). Even in the absence of such
a motion, a court is required to order such a hearing if the
statutory standard of “reasonable cause” is satisfied. 18
U.S.C. § 4241(a). We have recognized that, under this
statute, “the district court has not only the prerogative, but the
duty, to inquire into a defendant’s competency whenever
there is ‘reasonable cause to believe’ that the defendant is
incompetent to stand trial.” United States v. White, 887 F.2d
705, 709 (6th Cir. 1989).
For ease of analysis, we assume for present purposes that
Defendant’s statements at the September 21, 2000 plea
hearing provided “reasonable cause to believe” that
Defendant might be “mentally incompetent” within the
meaning of § 4241(a). It follows, under this assumption, that
the district court erred in going forward with the plea hearing
without first employing the process set forth in § 4241 for
determining a defendant’s competency. Even so, this surely
was the very essence of a “harmless error,” since all pertinent
portions of this process subsequently were employed at the
behest of Defendant himself.
Upon a showing or finding of “reasonable cause” under
§ 4241(a), a court is required to order a hearing to address the
matter of the defendant’s competency. See 18 U.S.C.
§ 4241(a). Prior to this hearing, the court “may order that a
psychiatric or psychological examination of the defendant be

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No. 01-5881 United States v. Denkins 15
conducted, and that a psychiatric or psychological report be
filed with the court.” 18 U.S.C. § 4241(b). The statute
further provides:
If, after the hearing, the court finds by a preponderance
of the evidence that the defendant is 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, the court shall
commit the defendant to the custody of the Attorney
General. The Attorney General shall hospitalize the
defendant for treatment in a suitable facility . . . .
18 U.S.C. § 4241(d).
Under the assumption that Defendant’s statements at the
September 21, 2000 plea hearing should have triggered these
statutory mechanisms, the district court would have been
required to order a hearing on the issue of Defendant’s
competency to enter a plea. Prior to this hearing, the court
was empowered to order that Defendant be referred for a
competency examination. Yet, regardless of whether the
district court perceived, or should have perceived, that such
an evaluation was desirable, Defendant himself, through his
new counsel, filed a motion requesting this very procedure.
In its January 18, 2001 Order, the district court granted this
request, and directed that Defendant be referred for a
competency evaluation. The court further ordered that the
resulting report “should address the question of (1) was
defendant competent when he entered his plea and (2) is he
competent to proceed with sentencing.” (1/18/2001 Order,
J.A. at 46.) The report addressed both of these issues,
answering both inquiries in the affirmative.
At this point, all that remained under § 4241 was the
hearing, at which the district court would have been obliged
to determine whether Defendant was incompetent within the
meaning of the statute. Yet, when defense counsel was asked
16 United States v. Denkins No. 01-5881
at sentencing whether he wished to pursue the issue of
Defendant’s competency, he expressly withdrew his objection
in light of the outcome of the competency evaluation.
Likewise, on appeal, Defendant does not point to any further
evidence bearing on his competency that might have been, but
was not, offered for the district court’s consideration at
sentencing. We know of no authority, and Defendant has not
cited any, for the proposition that § 4241 mandates a hearing
even when there is no prospect of meeting the statutory
standard of incompetency. Defendant and his counsel
evidently concluded that this standard could not be satisfied,
and the district court was not obligated to press forward
despite Defendant’s abandonment of the issue. Even
assuming, as we do here, that Defendant’s testimony at the
plea hearing provided “reasonable cause” to question his
competency, this “cause” surely was dissipated by the results
of the competency examination. See United States v. Giron-
Reyes, 234 F.3d 78, 81 (1st Cir. 2000) (“Initial competency
hearings under [§ 4241](a) are not mandated absent
reasonable cause because the evidence of competency may be
so overwhelming as to render any such hearing a superfluous
formality.”); United States v. Lebron, 76 F.3d 29, 32 (1st Cir.)
(“If a psychiatrist has determined that a defendant is
competent, a court is not required to hold a further evidentiary
hearing absent extenuating circumstances.”), cert. denied, 518
U.S. 1011 (1996).
Defendant suggests, however, that the order of events here
was significant, and that he suffered harm as a result of the
district court accepting his plea before referring him for a
competency evaluation. We fail to discern any legal
significance in this chronology, at least under the facts of this
case. In ordering the competency evaluation, the court
instructed that this process should address Defendant’s
competency at the time he entered his plea. The resulting
report opined that Defendant was competent to enter his plea,
thereby confirming the lower court’s own assessment at the
plea hearing. If this report had been available before the

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No. 01-5881 United States v. Denkins 17
hearing, it can hardly be said that the district court would
have been less likely to accept Defendant’s plea.
We do not mean to suggest that timing can never matter.
A different analysis might pertain, for example, where the
evidence indicates that the defendant’s condition fluctuates
over time, or where there is a substantial temporal gap
between a defendant’s competency evaluation and the
proceeding or hearing at which his competency is called into
question. See Pate v. Smith, 637 F.2d 1068, 1072 (6th Cir.
1981) (noting that “a retrospective determination [of a
defendant’s competency] may satisfy the requirements of due
process if it is based on evidence related to observations made
or knowledge possessed at the time of trial”). In this case,
however, Defendant does not claim that the timing of his
competency evaluation affected its outcome, or that an earlier
examination might have produced a different result.
Accordingly, if the district court violated § 4241 by accepting
Defendant’s plea before ordering a competency examination,
this error surely was harmless.
This leaves only the question whether Defendant’s
statements during the plea colloquy itself were so indicative
of incompetency that the district court was compelled, as a
matter of basic due process, to refuse Defendant’s plea and
instead convene a competency hearing. The Supreme Court
has observed that “the conviction of an accused person while
he is legally incompetent violates due process,” and has
instructed that a hearing is required “[w]here the evidence
raises a bona fide doubt as to a defendant’s competence to
stand trial.” Pate v. Robinson, 383 U.S.375, 378, 385, 86 S.
Ct. 836, 838, 842 (1966) (internal quotations and citations
omitted). On this matter, we ask “[w]hether a reasonable
judge, situated as was the trial court judge whose failure to
conduct an evidentiary hearing is being reviewed, should have
experienced doubt with respect to competency to stand trial.”
Williams v. Bordenkircher, 696 F.2d 464, 467 (6th Cir.), cert.
denied, 461 U.S. 916 (1983). The test of competency, in turn,
“is whether [the defendant] had sufficient ability to consult
18 United States v. Denkins No. 01-5881
with his lawyers and a reasonable degree of rational and
factual understanding of the proceedings against him.”
United States v. Ford, 184 F.3d 566, 580 (6th Cir. 1999), cert.
denied, 528 U.S. 1161 (2000).
It would be difficult to find such a due process violation
here, where the district court’s assessment of Defendant’s
competency at the plea hearing was subsequently confirmed
by qualified mental health professionals, and where the record
contains no professional opinion to the contrary. Nor did
Defendant exhibit irrational behavior at the plea hearing, or
otherwise act in a way that called his competency into
question. To the extent that Defendant’s statements regarding
voices and ringing in his ears raised concerns about his
mental condition, the district court did not ignore this
testimony, but instead explored the matter further. In
response, both Defendant and his counsel expressly assured
the court that Defendant understood the nature of the charges
and the consequences of his plea. As demonstrated by our
precedents, these circumstances did not compel the court
below to order a competency hearing. See Williams, 696 F.2d
at 465, 467; Owens v. Sowders, 661 F.2d 584, 585-86 (6th
Cir. 1981). Rather, we find that the district court’s plea
colloquy adequately protected Defendant’s right to due
process.
C. The District Court Properly Considered Defendant’s
Prior Drug Convictions in Computing His Sentence.
As his final issue on appeal, raised in a pro se submission,
Defendant argues that the district court erred in relying on his
prior drug convictions to trigger an enhanced statutory
sentencing range. Specifically, Defendant contends that the
Government failed to give proper notice of its intent to rely
upon these prior convictions, and that the district court failed
to determine whether the prior convictions were valid. We
find no merit in the first of these challenges, and hold with
regard to the second that any error was harmless.

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No. 01-5881 United States v. Denkins 19
The procedures governing the use of prior convictions in
sentencing are set forth at 21 U.S.C. § 851. Under subsection
(a)(1) of this statute, a person cannot be “sentenced to
increased punishment by reason of one or more prior
convictions, unless before trial, or before entry of a plea of
guilty, the United States attorney files an information with the
court (and serves a copy of such information on the person or
counsel for the person) stating in writing the previous
convictions to be relied upon.” 21 U.S.C. § 851(a)(1). The
statute further dictates that a defendant must file a written
response if he “denies any allegation of the information of
prior conviction, or claims that any conviction alleged is
invalid.” 21 U.S.C. § 851(c)(1). Finally, the statute imposes
a duty of inquiry upon the district court:
If the United States attorney files an information under
this section, the court shall after conviction but before
pronouncement of sentence inquire of the person with
respect to whom the information was filed whether he
affirms or denies that he has been previously convicted
as alleged in the information, and shall inform him that
any challenge to a prior conviction which is not made
before sentence is imposed may not thereafter be raised
to attack the sentence.
21 U.S.C. § 851(b).
In this case, contrary to Defendant’s assertion, the
Government complied with § 851(a)(1) by filing a July 10,
2000 information with the district court and serving a copy of
this information upon defense counsel. (See 7/10/2000 Prior
Conviction Information, J.A. at 36.) This information, filed
two months before Defendant’s September 21, 2000 plea
hearing, disclosed two prior felony convictions: (i) an
April 3, 1998 Ohio conviction for trafficking in drugs, and (ii)
a November 30, 1995 Connecticut conviction for possession
of narcotics. Either of these prior convictions, standing alone,
would suffice to trigger the 10-year mandatory minimum
sentence that the district court imposed upon Defendant, in
20 United States v. Denkins No. 01-5881
light of the drug quantity alleged in the indictment. See 21
U.S.C. § 841(b)(1)(B). Moreover, the court expressly
informed Defendant at the plea hearing that he faced a 10-
year mandatory minimum sentence. (See 9/21/2000 Hearing
Tr. at 14, J.A. at 87.) Thus, Defendant was given proper
notice, in accordance with the dictates of § 851(a)(1), of the
Government’s intended reliance on these two prior felony
convictions.
Nonetheless, Defendant correctly notes that the district
court failed to conduct the inquiry dictated by § 851(b). In
particular, while Defendant neither objected to the portion of
the presentence report detailing his prior convictions nor
raised this matter at sentencing, the court did not inquire
before sentencing Defendant whether he affirmed or denied
the two prior convictions disclosed in the July 10, 2000
information. We have held that “a failure to engage in the
colloquy required by section 851(b) is subject to harmless
error analysis.” United States v. Hill, 142 F.3d 305, 313 (6th
Cir.), cert. denied, 525 U.S. 898 (1998).
As demonstrated by the facts and holding of Hill, the lower
court’s error here was harmless. In Hill, as in this case, the
Government filed the required information disclosing two
prior drug convictions, but the defendant “did not object to
the presentence report, which referred to his prior
convictions,” and he “also did not object at sentencing.” Hill,
142 F.3d at 313. Accordingly, we found “no indication in the
record that defendant ever complied with the mechanisms of
section 851(c) to notify the district court that he would
challenge these convictions.” 142 F.3d at 313. Because of
the defendant’s failure to invoke the statutory mechanism for
contesting the Government’s statement of his prior
convictions, we held that there was “no reason for [the]
district court to conduct a hearing on the validity of the prior
convictions.” 142 F.3d at 313. More specifically, we held
that “the district court’s failure to engage in the colloquy
described in section 851(b) [wa]s harmless” where,
“notwithstanding repeated opportunity, defendant did not

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No. 01-5881 United States v. Denkins 21
4Even on ap peal, Defendant has not suggested any basis for
questioning the validity of either of the prior drug convictions relied upon
in sentencing. T o the contrary, in one o f his pro se subm issions to this
court, Defendant states that “I have one weed ca se and one n[a]rco [t]ic
case w[hi]ch was blown out of proportion.” (Appellant’s 9/5/2002 Br. at
3.)
challenge his prior convictions before the district court.” 142
F.3d at 313.
Precisely the same can be said here. Defendant neither
filed the requisite response under § 851(c)(1) challenging the
validity of his prior drug convictions, nor did he object at
sentencing to the use of these convictions to trigger a
statutory minimum 10-year term of imprisonment.4 Under
Hill, this absence of any challenge or objection renders
harmless the district court’s failure to conduct the inquiry
called for under § 851(b). Consequently, we affirm the use of
Defendant’s prior drug convictions in computing his sentence.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the conviction
and sentence of Defendant/Appellant Abraham Denkins.

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