from the United States District Court for the Southern
District of Texas
HIGGINSON and WILLETT, Circuit Judges, and BROWN, District
STEPHEN A. HIGGINSON, CIRCUIT JUDGE.
appeal arises from the attempted armed robbery and then, two
days later, the actual armed robbery of a credit union in
Pasadena, Texas in July 2014. Sonny Floyd Pervis and Raynard
Gray were convicted of bank robbery under 18 U.S.C. §
2113(a) and received additional sentences under 18 U.S.C.
§ 924(c) for carrying firearms during the offenses.
Pervis and Gray both raise two sentencing issues: first,
whether bank robbery under § 2113(a) is a "crime of
violence" for purposes of § 924(c); and second,
whether the actual robbery was permissibly deemed
"second or subsequent" in relation to the attempt
two days earlier. Binding authority controls both issues, so
we affirm Pervis's and Gray's sentences.
also challenges the district court's determination that
he was competent to stand trial under 18 U.S.C. § 4241,
citing evidence of intellectual disability. The district
court's careful deliberation yielded three expert
evaluations and a record posing interpretive difficulties.
Deferring to the district court's reasonable assessment
of this complex record, we affirm.
26, 2014, a group of armed men attempted to enter the Shared
Resources Credit Union on Highway 225 in Pasadena, Texas, but
its doors were locked. Appellants Pervis and Gray were among
days later, on July 28, Pervis and Gray returned to the
credit union. Pervis, who rode in one vehicle with two
associates, entered and robbed the credit union at gunpoint.
Gray rode in another vehicle that provided surveillance. A
third vehicle was for those carrying out the robbery to get
away. After Pervis and his two carmates robbed the credit
union, they did not get away cleanly, however. Patrol cars
caught up to them as they left the area, spurring a
high-speed chase that resulted in several arrests but also
the escape of several other persons.
enforcement tracked the defendants down in the ensuing
months. Most agreed to be interviewed. In their telling, Gray
organized the robbery. Defendant Keith McGee said that Gray
recruited him, supplied him with the gun that McGee used in
the robbery, and coordinated the group's efforts on July
28. Defendant Leroy Richardson also said that Gray recruited
him and instructed the group throughout the robbery.
Defendant Christopher Braziel likewise identified Gray as the
planner of the robbery.
and Gray were two of seven co-defendants charged in a
two-count indictment in February 2015. The first count
charged them with the robbery of the Shared Resources Credit
Union on July 28, 2014, a violation of 18 U.S.C. §
2113(a). The second count charged them with carrying and
brandishing handguns during the robbery, a violation of 18
U.S.C. § 924(c)(1)(A). A superseding indictment in May
2016 repeated the same charges but as to only four
defendants, reflecting the fact that three had chosen to
cooperate. A second superseding indictment filed in June
2016, the operative one for our purposes, added new counts
for the attempted robbery of the credit union on July 26 and
for the carrying and brandishing of a firearm in the process.
1, 2016, Gray's counsel moved for an evaluation and
hearing as to Gray's competency, arguing that Gray was
unable to assist in his own defense. The motion indicated
that a psychologist, Dr. Diane L. Bailey, had evaluated Gray
a week earlier. An IQ test, the Stanford-Binet Intelligence
Scale-Fifth Edition, had yielded an IQ of 61, and a test of
academic ability had indicated that Gray read at a
evaluations followed. The first was by Dr. Tennille
Warren-Phillips, a psychologist at the Federal Detention
Center (FDC) in Houston, who evaluated Gray from mid-June to
mid-July, 2016. She concluded that Gray was not competent to
stand trial, finding that Gray had an IQ score of 62 5;
poor adaptive functioning since childhood, according to an
interview with Gray's mother; and a doubtful ability to
understand legal proceedings. Dr. Warren-Phillips also found
certain results difficult to interpret. For instance, on one
test, the Validity Indicator Profile (VIP), Gray gave answers
following a pattern--11221122--that could indicate either
intentionally poor effort or low intellectual functioning.
Dr. Warren-Phillips's analysis, the Government requested
another evaluation. The Government contended that she
interviewed too few people, that she failed to consider
Gray's long history of prosecutions without a finding of
incompetency, and that Gray's adaptive functioning was
not as poor as supposed. The district court granted the
Government's motion, and Gray was transferred to the
Federal Correctional Institution (FCI) in Fort Worth for
evaluation by Dr. Lisa Bellah, a psychologist there.
Bellah produced the report on which the district court would
later ground its competency determination. She based her
report on interviews with correctional staff, the Assistant
U.S. Attorney on the case, and Dr. Warren-Phillips; on tests
specifically aimed at identifying malingering; and on emails and
phone calls by Gray while at FCI-Fort Worth. Dr. Bellah
picked up where Dr. Warren-Phillips's suspicions left
off. She ran the VIP again, as well as the Test of Memory
Malingering, which confirmed Gray was malingering. A test of
legal understanding, the Inventory of Legal Knowledge,
indicated the same.Due to Gray's performance in objective
and structured assessments, Dr. Bellah looked to Gray's
behavior while not under clinical observation. She spoke with
Kenneth Goldsby, a counselor in Gray's unit at FCI-Fort
Worth,  who told Dr. Bellah that Gray
"consistently socialized," kept score while playing
dominoes, understood unit rules, and regularly used the
phone, email, and commissary. Gray's calls and emails, in
turn, showed he understood the competency evaluation process,
as well as basic points about criminal proceedings. In one
conversation, Gray did the arithmetic necessary to find the
cost of bond set at $40, 000 or $50, 000. He also seemed to
understand the possible sentences he faced, the concept of a
sentencing range, the likely decisions of his co-defendants,
the charges against him, and the choice between pleading and
going to trial. Based largely on this evidence, Dr. Bellah
concluded that, though Gray exhibited "borderline"
intellectual functioning, he did not exhibit a mental defect
rendering him incompetent to be tried.
Dr. Bellah's report, Gray's counsel requested and the
district court granted another evaluation, this time by Dr.
Michael Chafetz, a neuropsychologist who had published
scholarly works on malingering. Like Dr. Bellah, Dr. Chafetz
detected malingering. He reached this conclusion after
conducting numerous tests, some solely for the purpose of
identifying malingering and some serving other purposes but
containing "embedded indicators" to discern
intentionally-poor effort. Gray's malingering invalidated
the IQ score of 51 yielded by Dr. Chafetz's
administration of the Wechsler Adult Intelligence Scale. To
counteract this problem, Dr. Chafetz took two steps. First,
he conducted a regression analysis of Gray's IQ score
based on the "known relationship" between
"poor effort/invalidity" and "increasingly
lower IQ scores." This adjustment changed Gray's IQ
score from 51 to a range of 65.4 to 68.1--higher but
"still in the range of Intellectual Disability."
Second, Dr. Chafetz used the Test of Premorbid Functioning,
which produces an IQ estimate "free from any
complications due to poor quality of effort" by
incorporating the test-taker's demographic profile. This
adjustment yielded an IQ score of 73 5. Dr. Chafetz's
assessment of Gray's adaptive functioning yielded low
results; so low that Dr. Chafetz doubted their accuracy. But
his analysis of Gray's legal understanding left him more
skeptical of it than Dr. Bellah, so he concluded that it was
"unlikely" that Gray was competent to stand trial.
He recognized Gray's malingering but reasoned that
"it was not possible to jump to the conclusion that
without malingering, his scores would be high enough to rule
out a mental defect."
March 1, 2017, the district court held a four-hour
evidentiary hearing, taking testimony from Dr. Bellah and Dr.
Chafetz. The hearing extensively covered the experts'
various points of convergence and divergence. One novelty was
Dr. Bellah's conclusion that Gray was able to understand
legal proceedings and assist in his own defense. In her
report, she had concluded only that Gray did not have a
mental defect. At the hearing, Dr. Bellah drew on Gray's
recorded phone calls and other evidence to conclude that he
was able to understand the proceedings and assist his
reasoned order issued March 7, 2017, the district court ruled
that Gray was competent to stand trial. The court began with
the evidence of Gray's continual malingering and with Dr.
Chafetz's and Dr. Bellah's "corrective
approaches." The court favored Dr. Bellah's
"more practical than theoretical response" to the
problem of malingering--that is, her reliance on
observational evidence, rather than Dr. Chafetz's use of
adjusted IQ scores. The court explained that Gray's
recorded phone calls demonstrated both his adaptive
functioning, in that he displayed coherent thought and could
recall information, and his legal understanding, in that he
understood the proceedings in his case.
weeks later, Gray and Pervis stood trial and were convicted
on all counts. Though the jury convicted them on the gun
counts, it found that they had not "brandished" or
"discharged" a firearm during the robbery on July
district court sentenced Pervis to 485 months. The court
chose 125-month concurrent sentences for both robbery
offenses. The court imposed a consecutive 60-month sentence
for Pervis's gun offense associated with the July 26
attempt, the minimum sentence permitted by 18 U.S.C. §
924(c)(1)(A)(i). The court imposed 300 months consecutively
for the gun offense associated with the July 28 robbery, the
minimum sentence for "a second or subsequent
conviction" under 18 U.S.C. § 924(c)(1)(C)
district court sentenced Gray to 510 months. The court chose
150-month concurrent sentences for the two robbery
offenses. It then imposed the same 60-month and
300-month consecutive sentences for the gun offenses that it
imposed on Pervis. The 25-month discrepancy between
Gray's and Pervis's robbery sentences reflected in
part that Gray received a four-level enhancement for
organizing an offense involving five or more
and Gray, through separate counsel, timely appealed.