                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                    July 21, 2006
                          FOR THE FIFTH CIRCUIT
                          _____________________               Charles R. Fulbruge III
                                                                      Clerk
                               No. 04-41541
                          _____________________

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

                                  versus

GUILLERMO GARCIA, JR.,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 5:03-CR-1394-ALL
_________________________________________________________________

Before JOLLY, PRADO, and OWEN, Circuit Judges.

PER CURIAM:*

     Defendant Guillermo Garcia was charged with transporting an

illegal alien within the United States in violation of 8 U.S.C. §

1324(a)(1)(A)(ii). Garcia challenged his competency to stand trial

due to the continuing impairment he suffers as a result of a

traumatic brain injury.      The district court, after conducting an

evidentiary    hearing,   found   Garcia   competent   to   stand    trial,

notwithstanding Garcia’s obvious comprehension and communication

difficulties.    Garcia then entered a guilty plea subject to a




     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
reservation of the right to appeal the district court’s competency

determination.      This appeal ensued.

     Expert witnesses have reached conflicting conclusions as to

Garcia’s competency to stand trial.                 However, none       of the experts

have conducted objective tests to determine the extent to which

Garcia has the ability “to assist properly in his defense,” 18

U.S.C. § 4241(d) (2005), nor have they conducted such tests to

determine his ability to comprehend.                 Further, no explanation has

been provided as to why such objective testing cannot be done or

would    not    provide    meaningful      results.           Although    the   record

indicates Garcia is unable to learn traditional sign language, the

record does not reflect any attempts to enhance Garcia’s ability to

communicate through a more formal method of sign language, nor any

objective      testing    to   determine       if   such     was   possible.     These

omissions leave us with serious concerns as to the voluntariness of

Garcia’s plea, and his competency to stand trial.                        We therefore

vacate    the    conviction      and   sentence        and     remand    for    further

proceedings.

                                                              VACATED and REMANDED.




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