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United States v. Pervis

United States Court of Appeals, Fifth Circuit

August 30, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee

          Appeal from the United States District Court for the Southern District of Texas

          Before HIGGINSON and WILLETT, Circuit Judges, and BROWN, District Judge. [*]


         This 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.

         Gray 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.


         On July 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 this group.

         Two 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.

         Law 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.

         Pervis 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.

         On June 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 third-grade level.

         Three 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.

         Faulting 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.

         Dr. 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;[1] 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.[2]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, [3] 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.

         Following 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.[4] 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."

         On 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 counsel.

         In a 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.

         Two 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 28.

         The 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) (2017).[5]

         The district court sentenced Gray to 510 months. The court chose 150-month concurrent sentences for the two robbery offenses.[6] 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 participants.[7]

         Pervis and Gray, through separate counsel, timely appealed.



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