United States of America v. Brock E. O’kennard

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 18, 2006
Decided October 19, 2006
Before
Hon. THOMAS E. FAIRCHILD , Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-4540
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BROCK E. O’KENNARD,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division
No. 02 CR 481
James B. Zagel,
Judge.
O R D E R
Brock O’Kennard robbed a bank at gunpoint and then shot and wounded a
police officer while trying to make his getaway. He was arrested and charged with
attempted armed robbery, see 18 U.S.C. § 2113(a), (d), and using a firearm during
the robbery, see id. § 924(c)(1). The district court conducted a lengthy hearing to
determine if O’Kennard was competent to stand trial. Two defense experts testified
that he exhibited signs of schizophrenia, and two government experts opined that
he was malingering. The district court found O’Kennard competent and afterward
he pleaded guilty to both counts pursuant to a written plea agreement. The district
court sentenced him to 51 months’ imprisonment for the robbery attempt (the low
end of the advisory range) plus a mandatory consecutive term of 120 months for
using the gun. O’Kennard filed a notice of appeal, but his appointed counsel moves
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-4540 Page 2
to withdraw because he is unable to discern a nonfrivolous basis for appeal. See
Anders v. California, 386 U.S. 738 (1967). Counsel’s supporting brief is facially
adequate, and O’Kennard did not respond to our invitation under Circuit Rule 51(b)
to comment on counsel’s submission. We thus review only the potential issues
identified in counsel’s brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th
Cir. 2002).
Counsel informs us that O’Kennard wants his guilty plea set aside, so
counsel first considers whether O’Kennard might argue that he was incompetent to
plead. A defendant must be competent at the time he pleads guilty, and the
standards governing competency to plead are the same as those governing
competency to stand trial. Burt v. Uchtman, 422 F.3d 557, 564 (7th Cir. 2005). But
as counsel notes, we review a competency finding for clear error. United States v.
Jones, 87 F.3d 954, 955 (7th Cir. 1996). Here, the district court’s ruling reflects an
extensive and thorough review of the testimony, and thus we agree with counsel
that it would be frivolous to argue that the court’s finding is clearly erroneous.
Counsel next considers whether O’Kennard might argue that there were
inadequacies in the plea colloquy. Our review would be for plain error because
O’Kennard did not seek to withdraw his guilty pleas in the district court. See
United States v. Vonn, 535 U.S. 55, 58-59 (2002). Counsel notes that the district
court did not mention O’Kennard’s right to an attorney, see Fed. R. Crim. P.
11(b)(1)(D), but O’Kennard was not prejudiced by the error because appointed
counsel was with him during the colloquy. See United States v. Lovett, 844 F.2d
487, 491 (7th Cir. 1988). Thus, the colloquy substantially complied with Rule 11,
and we agree with counsel that any challenge would be frivolous. See Schuh, 289
F.3d at 975.
Finally, counsel considers whether O’Kennard might argue that his overall
prison sentence should have been reduced below the guidelines range on account of
his mental and emotional condition. But O’Kennard’s sentence is within the
advisory guidelines range and is thus presumptively reasonable, and counsel can
identify no error in the district court’s calculation of the guidelines range or its
analysis of the relevant factors under 18 U.S.C. § 3553(a). See United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); United States v. Williams, 425 F.3d
478, 480 (7th Cir. 2005). Rather, we agree with counsel that the court gave
meaningful consideration to the § 3553(a) factors. See United States v. Laufle, 433
F.3d 981, 987 (7th Cir. 2006). In fact, upon considering the need to protect the
public, see § 3553(a)(2)(C), the district court concluded that O’Kennard’s mental
condition rendered him dangerous and weighed against shortening his sentence. It
would thus be frivolous to argue that O’Kennard’s sentence is unreasonable.

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No. 05-4540 Page 3
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.

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