                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 10-50631
                Plaintiff-Appellee,           D.C. No.
               v.                         5:08-cr-00041-
JOEL STANLEY DREYER,                           VAP-1
             Defendant-Appellant.
                                            OPINION

       Appeal from the United States District Court
           for the Central District of California
       Virginia A. Phillips, District Judge, Presiding

                  Argued and Submitted
          February 8, 2012—Pasadena, California

                   Filed August 21, 2012

  Before: Stephen Reinhardt, Kim McLane Wardlaw, and
          Consuelo M. Callahan, Circuit Judges.

               Opinion by Judge Reinhardt;
                Dissent by Judge Callahan




                            9481
9484             UNITED STATES v. DREYER




                      COUNSEL

Pamela O’Leary Tower (argued), Kenwood, California, Roger
J. Rosen, Los Angeles, California, for the appellant.
                   UNITED STATES v. DREYER                 9485
Antoine F. Raphael (argued), Assistant United States Attor-
ney, Andre Birotte Jr., United States Attorney, Riverside, Cal-
ifornia, for the appellee.


                          OPINION

REINHARDT, Circuit Judge:

   At the age of 63, Joel Dreyer experienced the onset of fron-
totemporal dementia, a degenerative brain disorder that causes
changes in personality and behavior, impairs social interac-
tions, and causes disinhibition and a loss of insight and
impulse control. He was a practicing psychiatrist at the time.
From the age of 66 to 69, despite having no criminal history,
Dreyer participated in a conspiracy to distribute controlled
substances, and in December 2010, at the age of 73, he was
sentenced to ten years imprisonment after he pleaded guilty to
charges related to that conspiracy.

   At the sentencing hearing, the district court was provided
with three expert reports: all three diagnosed Dreyer with
frontotemporal dementia and noted that he exhibited textbook
manifestations of the condition since its apparent onset in
2001, three years before his participation in the controlled
substance conspiracy, and that his symptoms persisted into
the present. Dreyer did not allocute at sentencing and defense
counsel informed the court that his client would not address
it due to the dementia’s effect on his behavior. Defense coun-
sel did not move for a competency hearing and the district
court did not order a hearing sua sponte. The court sentenced
Dreyer to 120 months. Dreyer appeals his sentence, contend-
ing that the district court erred by failing sua sponte to order
an evidentiary hearing to determine his competency at the
time of sentencing.

  We hold that the record before the district court at sentenc-
ing was sufficient to cause a genuine doubt as to the defen-
9486                  UNITED STATES v. DREYER
dant’s competence and that the court committed plain error by
failing to order a hearing sua sponte. Accordingly, we vacate
Dreyer’s sentence and remand for the district court to evaluate
Dreyer’s competency on the basis of an evidentiary hearing.
In light of the additional circumstances of this case, we also
direct that all further proceedings be assigned to a new judge
on remand.

                         BACKGROUND

   Dreyer experienced a medical emergency in 2001 that coin-
cided with the onset of frontotemporal dementia. Immediately
after being released from the hospital, Dreyer’s family noticed
significant changes in his personality and behavior. Within a
few years Dreyer ended his previously-happy marriage to his
wife of 17 years, engaged in uncharacteristic behavior and
withdrew from his family to such a degree that friends and
relatives concluded that he was exhibiting early signs of demen-
tia.1 Despite the family’s concerns, his illness remained
undiagnosed. In 2004, the 66-year-old Dreyer, a licensed psy-
chiatrist, began providing prescriptions of oxycodone and
hydrocodone to patients outside of the usual course of profes-
sional practice. In 2007 Dreyer was indicted on charges
related to his participation in a conspiracy to possess and to
distribute controlled substances. Although Dreyer had diffi-
culty recognizing or admitting that his actions were inconsis-
tent with professional standards of conduct, he nonetheless
pleaded guilty in September 2009 to two counts of the thirty
count indictment.
  1
   Dreyer’s family recounted a number of instances in which he behaved
in ways that starkly contrasted with his pre-onset behavior. Among them
was an instance when Dreyer appeared wearing dress slacks and nude
from the waist up in the lobby of an expensive hotel to meet with his
daughter and a family friend. His daughter also described Dreyer as
behaving “detached and aloof” at her younger son’s bar mitzvah, going so
far as to read a newspaper in the temple while his grandson gave his
speech. This was a marked contrast from her first son’s bar mitzvah, at
which the defendant “was engaged, singing [and] shedding tears of joy.”
                       UNITED STATES v. DREYER                         9487
   Prior to sentencing, Dreyer submitted three different expert
reports to the court, all of which diagnosed him as suffering
from frontotemporal dementia.2 Two of the reports were
obtained from experts hired by the defense, while the third
expert was selected by the government but jointly commis-
sioned by both parties. All three reports were consistent in
their diagnoses and descriptions of Dreyer’s symptoms. The
joint report authored by the expert recommended by the pros-
ecution, Dr. Martell, noted that Dreyer exhibited “behavioral
disinhibition, frontal lobe cognitive dysfunction, memory
impairment, loss of smell (anosmia), impaired word-finding
ability (dysnomia), hypersexuality, loss of tact and social pro-
priety, and lack of insight into his own impairments (ano-
sagnosia).” The Martell report noted that Dreyer’s affect was
normal and that he retained the ability to articulate, but that
he suffered from “moderately severe impairment” in three
areas of brain functioning: executive control, language, and
memory. The report also stated that this condition affected his
behavior and ability to communicate, as well as his ability to
regulate his speech appropriately or to have insight into his
own behavior.

   Doctors Amen and Krause authored one of the two reports
commissioned by the defense (“the Amen/Krause report”).
Their report included brain imaging results showing “exten-
sive frontal lobe damage” causing “his judgment [to] be
severely impaired and his insight also impaired.” The results
of their neuropsychological testing similarly “revealed deficits
that are consistent with Frontotemporal Dementia,” which
“affects the part of the brain that regulates comportment,
insight and reasoning.” Dr. Rudnick, the author of the final
  2
    At Dreyer’s change of plea hearing, he informed the court that a doctor
had identified frontal lobe damage in his brain. At the time, Dreyer’s
counsel made no comments regarding the effect of this condition on
Dreyer’s ability to assist in his defense and the court did not have the ben-
efit of any of these expert reports; all three reports were completed after
Dreyer entered his guilty plea.
9488                UNITED STATES v. DREYER
report, also concluded that Dreyer suffered from “impaired
judgment, disinhibition and impulsivity that . . . rendered him
vulnerable to acting rashly and without consideration of the
consequences.” He stated that Dreyer’s history reflected a
“textbook description of [frontotemporal dementia],” which
“present[s] in the early phases with behavioral and personality
changes, with cognitive deficits appearing later.” Rudnick
reported that Dreyer’s “verbal output was laced with inappro-
priate sexual references, profanity and facetiousness [and]
[h]e exhibited impulsivity in his responses, disinhibition and
expansiveness to the point of grandiosity.” Despite Dreyer’s
propensity for falsehoods and exaggerations, the doctor stated
that “any distortions are the result of his faulty judgment,
insight and recall rather than intentional misrepresentation.”
Rudnick concluded by noting the degenerative nature of the
disease. He observed that frontotemporal dementia is both “ir-
reversible and progressive,” and that Dreyer’s “long-term
prognosis is quite dismal,” with an average life span of 3.4
years from the time of diagnosis and a diminishing ability to
live independently in the interim.

   The evaluations of the four experts consulted were substan-
tially similar, and the reports explicitly disagreed only in their
conclusions about Dreyer’s competency. Martell’s report spe-
cifically opined as to whether Dreyer was incompetent when
he entered his guilty plea. Martell concluded that he was com-
petent at the time of his plea and had taken “full responsibility
for having engaged in improper prescribing practices.” When
he considered Dreyer’s mental state at the time of the offense,
however, he acknowledged that Dreyer “engaged in the
behaviors for which he has plead guilty while suffering from
Dementia and an organic personality disorder that rendered
him disinhibited, and impaired his judgment,” and that this
fact “may mitigate or reduce his culpability . . . as his moral
compass was effectively compromised by brain damage over
which he had impaired control.” The Amen/Krause report
came to a contrary conclusion as to Dreyer’s competency: it
concluded that the dementia “caused him to engage in activi-
                   UNITED STATES v. DREYER                    9489
ties that he may not have clearly understood such as in the
plea agreement.” Rudnick’s report did not offer any explicit
conclusions as to Dreyer’s competency, but stated, consistent
with the other reports, that “his dementia prevented him from
accurately critiquing or monitoring his own behavior and
from foreseeing its consequences,” and that throughout the
time that he engaged in the activities for which he was being
prosecuted, Dreyer “was truly convinced that his actions did
not constitute professional violations.”

   All three expert reports were submitted to the court prior to
Dreyer’s sentencing hearing in December 2010. The presen-
tence report recommended a sentence between 188 and 235
months, and the government requested a sentence of 121
months. Dreyer’s attorney argued for a sentence of probation
due to Dreyer’s deteriorating health and the fact that his
unlawful conduct was precipitated by the onset of a disease
that substantially impaired his ability to make decisions and
differentiate right from wrong. Explaining the effect of fron-
totemporal dementia, counsel stated that “[t]his disease takes
people, and it doesn’t rob them of their intellect, it robs them
of their moral compass.” He equated the proposed 121-month
sentence to a death sentence for the then-73-year-old Dreyer,
due to the progression of the disease and unfavorable progno-
sis.

   Dreyer did not speak on his own behalf at sentencing. His
attorney explained his decision to direct Dreyer not to speak
as follows:

    My client isn’t going to speak today because one of
    the characteristics of the disease is that I don’t know
    what he’s going to say. He could speak inappropri-
    ately. He could make denials. He could accept
    responsibility, then not accept responsibility. That’s
    also a characteristic of this disease.

Counsel went on to ask for mercy on Dreyer’s behalf, asking
the court to “understand that Dr. Dreyer is partially with us,
9490                UNITED STATES v. DREYER
partially not with us, and that’s why he’s not speaking. I can’t
even imagine what he would say to you, Your Honor, and I
can’t even imagine what his perception of the truth is in 50
percent of the cases.” After defense counsel presented his
argument on behalf of Dreyer, the district court fulfilled its
obligation to personally address the defendant. In response,
Dreyer stated that he respected the judge and appreciated her
comments.

   The court sentenced Dreyer to 120 months and made a rec-
ommendation to the Bureau of Prisons that Dreyer be housed
at the federal medical center in Rochester, Minnesota. Dreyer
appeals his sentence contending that the district court erred by
failing sua sponte to order an evidentiary hearing to determine
whether he was competent at the time of sentencing.

                        DISCUSSION

                               I.

   [1] The district court has a statutory duty to “order . . . a
[competency] hearing on its own motion, if there is reason-
able cause to believe that the defendant may presently be suf-
fering 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). “On
review, [the] inquiry is not whether the trial court could have
found the defendant either competent or incompetent, nor
whether [the reviewing court] would find the defendant
incompetent . . . . Rather, the record is reviewed to see if the
evidence of incompetence was such that a reasonable judge
would be expected to experience a genuine doubt respecting
the defendant’s competence.” United States v. Marks, 530
F.3d 799, 814 (9th Cir. 2008) (alterations in original) (internal
citations and quotation marks omitted). Here, the district court
committed error by failing to order a competency hearing sua
sponte despite a record that raises a genuine doubt that the
                    UNITED STATES v. DREYER                  9491
defendant was incapable of assisting properly at the sentenc-
ing proceeding.

   Alleged errors that are unobjected to in the district court are
generally subject to plain error review. United States v.
Olano, 507 U.S. 725, 731-32 (1993). We have explicitly
applied the plain error standard in our review of the district
court’s failure sua sponte to order a competency hearing.
Marks, 530 F.3d at 814; United States v. Fernandez, 388 F.3d
1199, 1250-51 (9th Cir. 2004). But see United States v. Mitch-
ell, 502 F.3d 931, 986-97 (9th Cir. 2007) (not subjecting the
trial court’s failure sua sponte to conduct a competency hear-
ing to plain error review). “Relief for plain error is available
if there has been (1) error; (2) that was plain; (3) that affected
substantial rights; and (4) that seriously affected the fairness,
integrity, or public reputation of the judicial proceedings.”
United States v. Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008).
As a practical matter, a district court’s failure to conduct a
competency hearing on its own motion will always be subject
to plain error review. This is because a defense counsel who
is attuned to his client’s mental condition and recognizes that
the defendant’s competency is in question would not leave it
up to the district court to order a competency hearing sua
sponte, rather, he would move for such a hearing himself. If
his motion was denied we would then evaluate the district
court’s denial of the motion rather than its failure to order a
hearing sua sponte. See, e.g., United States v. Duncan, 643
F.3d 1242 (9th Cir. 2011). Therefore, the question currently
before us, whether the district court’s failure to order a com-
petency hearing sua sponte, will always be raised for the first
time on appeal.

   If we find that “evidence of incompetence was such that a
reasonable judge would be expected to experience a genuine
doubt respecting the defendant’s competence,” Chavez v.
United States, 656 F.2d 512, 516 (9th Cir. 1981), then the first
two prongs of the Olano test are satisfied, leaving the ques-
tions of substantial rights and fairness. One of the founda-
9492               UNITED STATES v. DREYER
tional principles of our judicial system is the belief that an
individual should neither be allowed to stand trial nor have his
sentence carried out if he is incompetent. E.g. Drope v. Mis-
souri, 420 U.S. 162, 171-172 (1975) (“Competence to stand
trial is rudimentary, for upon it depends the main part of those
rights deemed essential to a fair trial.”). Allowing a judicial
proceeding to continue when there is genuine doubt as to the
competence of the accused plainly implicates the substantial
rights of the accused and seriously affects the fairness, integ-
rity and public reputation of the judicial proceedings. Thus,
while we must subject Dreyer’s claim to plain error review,
the analysis is ultimately reducible to the question of whether
“the evidence of incompetence was such that a reasonable
judge would be expected to experience a genuine doubt
respecting the defendant’s competence.” Chavez, 656 F.2d at
516. Where the answer is yes, the failure to order a compe-
tency hearing sua sponte is plain error.

                              II.

   [2] Here, we must determine whether the district court had
before it sufficient evidence to create a bona fide doubt as to
Dreyer’s competency. “Competence is defined as the ability
to understand the proceedings and to assist counsel in prepar-
ing a defense.” Miles v. Stainer, 108 F.3d, 1109, 1112 (9th
Cir. 1997) (citing Dusky v. United States, 362 U.S. 402 (1960)
(per curiam)). “[T]he competency right does not end at a con-
viction,” but rather persists through sentencing. Duncan, 643
F.3d at 1248; U.S. v. Ahrendt, 560 F.3d 69, 74 (1st Cir. 2009)
(“The obligation to determine competency to stand trial is
continuing, and persists throughout a proceeding including
through the sentencing phase.”); see also 18 U.S.C. 4241(a)
(noting that the inquiry into a defendant’s competence may
take place “any time after the commencement of a prosecu-
tion . . . and prior to the sentencing of the defendant.”). The
record raises a question as to the defendant’s competence if
there is substantial evidence that, due to a mental disease or
defect, the defendant is either “unable to understand the
                    UNITED STATES v. DREYER                   9493
nature and consequences of the proceedings against him or to
assist properly in his defense.” United States v. Friedman, 366
F.3d 975, 980 (9th Cir. 2004) (emphasis in original) (quoting
18 U.S.C. § 4241(d)) (holding that the district court properly
found the defendant incompetent where he was able to under-
stand the proceedings but not capable of assisting properly in
his defense). Although the level of competency mandated by
due process does not vary based on the specific stage of the
criminal proceeding, Godinez v. Moran, 509 U.S. 389, 400-01
(1993), the defendant’s ability to participate or assist his
counsel must be evaluated in light of the type of participation
required.

   [3] “Sentencing is a critical stage of the criminal process,”
Boardman v. Estelle, 957 F.2d 1523, 1525 (9th Cir. 1992)
(citing Mempha v. Rhay, 389 U.S. 128, 134 (1967)), and the
defendant’s allocution, “is an essential element of a criminal
defense.” Id. at 1526. Competence at sentencing therefore
requires, among other things, that the defendant be able to
assist in his own defense by participating in his “elementary
right” of allocution. Id. at 1527 (quoting United States v.
Behrens, 375 U.S. 162, 84 (1963)). Although a defendant is
not compelled to speak on his own behalf at sentencing,
courts have long recognized the importance of affording him
such an opportunity. The creation of various procedural pro-
tections has not “lessen[ed] the need for the defendant, per-
sonally, to have the opportunity to present to the court his plea
in mitigation. The most persuasive counsel may not be able
to speak for a defendant as the defendant might, with halting
eloquence, speak for himself.” Green v. United States, 365
U.S. 301, 304 (1961). At sentencing, “the test [of compe-
tency] is whether the defendant is able to understand the
nature of the proceedings and participate intelligently to the
extent participation is called for.” Chavez, 656 F.2d at 518
(9th Cir. 1981). The ability to allocute, in short, is an essential
element of this participation.

   [4] At sentencing Dreyer refrained from allocuting. While
the defendant has the right to make this choice, defense coun-
9494               UNITED STATES v. DREYER
sel explained the reason underlying Dreyer’s silence: his dis-
ease prevented him from coherently speaking on his own
behalf. Counsel expressed concern that Dreyer might contra-
dict himself by accepting responsibility and then refusing to
do so, or would speak to the court inappropriately. He also
explicitly informed the court that Dreyer had difficulty per-
ceiving the truth as a result of his dementia and was only
“partially with us.” The decision not to allocute was therefore
obviously viewed by the defense as necessitated by Dreyer’s
medical condition.

   [5] Although it is true that “defense counsel will often
have the best-informed view of the defendant’s ability to par-
ticipate in his defense,” Medina v. California, 505 U.S. 437,
450 (1992), the district court need not have relied merely on
the defense counsel’s statements to determine whether
Dreyer’s competence was in question. Counsel’s assessment
of Dreyer was supported by all three medical evaluations
presented to the court. Although the medical experts
described Dreyer as generally cooperative and articulate, they
also found his behavior to be inappropriate, his personality
emotionally-blunted, and his speech laced with sexual refer-
ences and profanity. He was prone to lies and exaggerations
due to his faulty judgment, insight and recall. Despite
Dreyer’s apparent proclivity for falsehood, the experts
observed that these statements were not made in a deliberate
attempt to misrepresent the truth. Dreyer lacked an awareness
of social norms of comportment and exhibited poor social
judgment and a penchant for engaging in provocative and
antagonistic behavior had already resulted in his receiving a
severe beating during his brief prison stay. The experts explic-
itly recognized that Dreyer had a “profound lack of social pro-
priety,” and an inability to “filter himself effectively.” They
additionally noted that he was prone to making inflammatory
religious and racial statements that conflicted with his long-
held beliefs, and that, if incarcerated, he would need protec-
tive custody “essentially to protect him from himself.” As a
result of his frontotemporal dementia, Dreyer was not only
                   UNITED STATES v. DREYER                 9495
incapable of making a reasoned plea for leniency, but was
unable to even refrain from making comments that were con-
trary to his own beliefs and that placed him in physical dan-
ger. The uncontradicted medical evidence before the district
court supported counsel’s representation that Dreyer’s failure
to allocute was compelled by his ailment and his resultant
inability to regulate his speech or behavior in a manner that
could assist in his defense. Given the consistency between
counsel’s statements and the supporting expert reports, the
district court had substantial evidence before it that should
have created a reasonable doubt in its mind as to Dreyer’s
ability to assist in his own defense, and thus as to his compe-
tency.

                              III.

   The cases in which this court has concluded that there was
no basis for the trial court to doubt the defendant’s compe-
tency, including all those cited by the government, involve
substantially less evidence to suggest incompetency than the
case before us. For instance, in United States v. Mendez-
Sanchez, 563 F.3d 935, 939-40 (9th Cir. 2009), there was no
diagnosis of any mental disorder or defect. The defendant was
uncooperative with his attorneys, but when asked explicitly
by the judge whether the defendant might be incompetent,
defense counsel reported that they did not believe that he was.
Id. at 941-42; 947-48. Instead, counsel told the court, the
defendant’s difficulties were based solely on a refusal to
accept facts which he did not like. Id. In Marks, 530 F.3d 799
(9th Cir. 2008), the defendant was rude, asserted that the court
lacked jurisdiction over him and was uncooperative with
counsel. 530 F.3d at 814-815. Again, however, there was no
medical diagnosis to suggest that the defendant might be
incompetent, and his counsel did not alert the court to any
possible difficulties. In Davis v. Woodford, 384 F.3d 628 (9th
Cir. 2004), the defendant refused to wear civilian clothes or
sit at the counsel table. There was no medical evidence indi-
cating any kind of ailment, nor did counsel assert that the
9496                    UNITED STATES v. DREYER
defendant was incapable of assisting in his defense. Id. at 645-
46. On appeal the defendant alleged only that “[t]he trial court
judge was in a position to gauge whether a competency hear-
ing would be in order,” but this court determined that his
unusual behavior alone was insufficient to create a genuine
doubt as to his competency, and that his actions reflected a
reasoned choice. Id. at 646.

   In all of these cases, there was only comparatively minor
inappropriate courtroom behavior. There was no evidence that
the defendant would be unable to understand or participate in
the proceedings. In contrast to Dreyer’s sentencing proceed-
ings, there were no statements by counsel or medical diagno-
ses that would have produced a genuine doubt as to the
defendant’s competency in the mind of a reasonable judge. In
fact, in these cases when medical evidence was presented, or
defense counsel made a statement to the court regarding the
defendant’s competence, the evidence supported a finding of
competency. Here, the opposite is true. The court had a clear
diagnosis of frontotemporal dementia from multiple sources,
including one selected by the government, and all of the
expert reports noted the defendant’s inability to regulate his
behavior and speech as a result of this illness. The court also
had counsel’s express statements that the defendant would not
speak on his own behalf as a result of his medical condition.
The cases cited by the government are therefore inapplicable.3
   3
     A case relied on heavily in the dissent, United States v. White, 670 F.3d
1077 (9th Cir. 2012), is also inapplicable and presents an entirely different
issue. In White, the issue presented was whether the district court commit-
ted error by failing to order a second competency hearing sua sponte after
the court had previously conducted a hearing on the matter and found the
defendant to be competent to stand trial. The court in White recognized
that, where, as here, a hearing has not previously been held, the proper
standard of review “is comprehensive and not limited by either the abuse
of discretion or clearly erroneous standard,” and error occurs when the
reviewing court determines that the evidence before the trial court “raises
a bona fide doubt as to whether the defendant has become incompetent.”
White, 670 F.3d at 1082 (internal citations and quotation marks omitted).
                       UNITED STATES v. DREYER                         9497
   [6] When this court has considered a record containing
expert diagnoses of a medical disorder bearing on the defen-
dant’s mental state we have found this evidence sufficient to
cause genuine doubt as to the defendant’s competency. See,
e.g., Deere v. Woodford, 339 F.3d 1084, 1086-87 (9th Cir.
2003); Odle v. Woodford, 238 F.3d 1084, 1088-89 (9th Cir.
2001); Morris v. United States, 414 F.2d 258 (9th Cir. 1969)
(per curiam). Even in the absence of expert evidence, we have
found cause to grant a motion for a competency hearing when
defense counsel reported an attempted suicide by the defen-
dant the night before trial. United States v. Loyola-
Dominguez, 125 F.3d 1315 (9th Cir. 1997). District courts to
which such evidence is presented are obligated to determine
only whether doubt has been created, not whether the defen-
dant is competent or incompetent. In such cases that question
can ordinarily be resolved only after an evidentiary hearing.

   Although each case presents a unique set of facts, the case
that involved the most comparable record before the district
court is Duncan, 643 F.3d 1242 (9th Cir. 2011).4 In Duncan,
the record before the district judge included five competing
expert reports: two from court-appointed experts that found
“no evidence of psychotic behaviors or thought processes,” id.
at 1246, and three from defense experts that found that the

Where, as in White, a competency hearing has already been conducted and
in that hearing the defendant has been found competent, White holds that
the standard of review is more deferential and error can be found only if
the failure to order a second hearing sua sponte constitutes an abuse of dis-
cretion. Id. In Dreyer’s case, there was no prior hearing as to his compe-
tency, and thus we must conduct, as White reaffirms, a “comprehensive
[review] not limited by either the abuse of discretion or clearly erroneous
standard.” Id.
   4
     Although Duncan involved the district court’s decision not to hold a
formal competency hearing despite defense counsel’s motion, on appeal
the analysis is the same: “whether a reasonable judge, situated as was the
trial judge who denied the motion, should have experienced doubt with
respect to the defendant’s competence.” Duncan, 643 F.3d at 1247.
9498               UNITED STATES v. DREYER
defendant suffered from “severe psychosis,” id. at 1249, and
were accompanied by a brain scan showing “unusual brain
structure consistent with behavioral deficits in the ability to
make rational plans and modulate emotions.” Id. at 1249. The
record also included letters written by the defendant, some of
which “appear[ed] rational” while the others included state-
ments that were “unusual.” Id. at 1250. Lastly, as evidenced
by the motion for a competency hearing, counsel in Duncan
also expressed a belief that the defendant was not competent.
Id. at 1245. On review this court concluded that the evidence
presented to the district court created a “reasonable doubt
about the Defendant’s competence, such that § 4241(a)
required a full competency hearing before the district court
could reach a decision.” Id. at 1250.

   [7] The trial court here, as in Duncan, was faced with a
record that included diagnoses of a medical disorder affecting
the defendant’s mental condition and behavior. Although
Dreyer’s counsel did not move for a competency hearing, he
explicitly informed the court that his client’s disease pre-
vented him from participating in his defense to the extent that
further participation was called for. As in Duncan, we must
therefore conclude that the evidence on the record was suffi-
cient to create a reasonable doubt as to Dreyer’s competence
and thus compelled the district court to order a competency
hearing sua sponte.

   [8] The government primarily relies on Dreyer’s calm
demeanor at sentencing to argue that the record was insuffi-
cient to create reasonable doubt as to his competence. Among
the factors to consider when evaluating whether a court erred
in failing to order a competency hearing sua sponte, are the
“defendant’s irrational behavior, his demeanor at trial, and
any prior medical opinion on competence,” Drope, 420 U.S.
162, 180 (1975), however, “[n]one of these factors is determi-
native,” Miles, 108 F.3d 1109, 1112 (9th Cir. 1997), and
“even one of these factors standing alone may, in some cir-
cumstances, be sufficient.” Drope, 420 U.S. at 180. While the
                    UNITED STATES v. DREYER                 9499
defendant’s courtroom behavior may provide insight into his
mental condition, we have previously observed that a “judge
may be lulled into believing that [the defendant] is competent
by the fact that he does not disrupt the proceedings, yet this
passivity may itself mask an incompetence to meaningfully
participate in the process.” Odle, 238 F.3d at 1089. Here,
according to the undisputed facts in the record, counsel’s
decision that Dreyer should not allocute was “a strategy for
controlling his behavior,” id. at 1089, n.6; it was necessitated
by a mental ailment, and was not proof of Dreyer’s compe-
tence. Dreyer’s condition, as described in detail by the three
expert reports, did not manifest itself in violent outbursts, but
instead prevented him from expressing himself appropriately
or in a manner that could assist in his defense. Given the
expert opinions that supported defense counsel’s representa-
tion that Dreyer was unable to assist in his defense due to his
medical condition, the record creates a genuine doubt as to
Dreyer’s competency even in the absence of observable court-
room antics.

                              IV.

  [9] Given the substantial evidence of Dreyer’s lack of
competency, we hold that the district court’s failure to order
a competency hearing sua sponte constituted plain error. We
vacate Dreyer’s sentence and remand for the district court to
hold an evidentiary hearing.

   [10] “Although we generally remand for resentencing to
the original district judge, we remand to a different judge if
there are unusual circumstances.” United States v. Quach, 302
F.3d 1096, 1103 (9th Cir. 2002) (citing United States v. Mik-
aelian, 168 F.3d 380, 387 (9th Cir. 1999)) (internal quotation
marks omitted). When making this determination we con-
sider:

    1) whether the original judge would reasonably be
    expected upon remand to have substantial difficulty
9500                   UNITED STATES v. DREYER
      in putting out of his or her mind previously
      expressed views or findings determined to be errone-
      ous or based on evidence that must be rejected, (2)
      whether reassignment is advisable to preserve the
      appearance of justice, and (3) whether reassignment
      would entail waste and duplication out of proportion
      to any gain in preserving appearance of fairness.

Id. (internal citation omitted). “The first two of these factors
are of equal importance, and a finding of one of them would
support a remand to a different judge.” United States v.
Hanna, 49 F.3d 572, 578 (9th Cir.1995) (internal quotation
marks and citation omitted). Both are present in this case.
Because we conclude that the district judge would have diffi-
culty setting aside her previously-expressed views as to
Dreyer’s competency, and because reassignment is advisable
to preserve the appearance of justice, we remand this case to
a different judge for the completion of all further proceedings.

   [11] Here, the district judge, in a bail proceeding after
Dreyer had already been sentenced, defended her failure to
conduct an evidentiary hearing at the time of sentencing.5 In
doing so, she substituted her lay evaluation of Dreyer’s
behavior for the opinions of the medical experts and misstated
the express remarks of counsel in a manner that conformed
with her own assessment of Dreyer’s mental condition.6 She
  5
     We take judicial notice of the June 20, 2011 hearing. U.S. v. Wilson,
631 F.2d 118, 119 (9th Cir. 1980); see also United States v. Howard, 381
F.3d 873, 876, n.1 (9th Cir. 2004). The Appellant’s motion to strike the
portion of the government’s brief and excerpt of records that refers to this
hearing is therefore denied as moot.
   6
     The dissent asserts that the district court’s “considerable experience
with Dreyer and his counsel” weighs against reassignment, and points to
a statement purportedly made by Dreyer’s counsel asserting that Dreyer
was manipulative and cunning as somehow relevant to that conclusion. To
the contrary, the statement cited by the dissent — which was made by the
district court, not defense counsel — further illustrates how the district
court attempted to justify its decision by misconstruing statements made
                        UNITED STATES v. DREYER                         9501
also failed to mention the diagnoses of frontotemporal demen-
tia as a consideration in determining whether there was an
issue as to Dreyer’s competence. Her only brief mention of
the expert reports was to note that they did not establish that
Dreyer was incompetent. Although she minimized the rele-
vance of the medical reports, she explained that her own eval-
uation of Dreyer’s competency was substantially affected by
his apparent reliance on his condition as a basis for seeking
a lesser sentence. The statements by the district judge indicate
that she has already determined, without the benefit of a hear-
ing or a full consideration of the submitted medical evidence,
that Dreyer is competent and that a full evidentiary hearing is
unnecessary. She has also determined that Dreyer was using
his claim of illness in an attempt to obtain a lesser sentence.
All of these facts are on the public record. Given these facts,
it is reasonable to expect that the judge would have difficulty
putting out of her mind the previous assessment that she so
vigorously defended, and reasonable to conclude that reas-
signment is advisable to preserve the appearance of justice.
We therefore remand for an evidentiary hearing as to Dreyer’s
competency to be held before a different judge.

by the defense, and supports our decision to reassign. At the June 20, 2011
hearing, the court incorrectly imputed to counsel the description of Dreyer
as “intelligent . . . cunning and manipulative,” as well as the statement that
Dreyer would be “running the prison if he is sentenced to incarceration
because of his exceptional abilities.” The record from the sentencing hear-
ing reflects that these were not the representations of the defense counsel.
To the contrary, counsel argued that Dreyer would be at risk by placing
him in either a prison or a federal medical facility because, due to his ill-
ness, Dreyer would engage in inappropriate behavior, which would likely
render him a target of the violent acts of other inmates. Counsel asserted
that placing Dreyer in a facility would result in him being “beaten to death
or shanked . . . or placed in isolation, which will accelerate the deteriora-
tion.” He stated that such placement may also “mess up the facility,
because Dr. Dreyer, based on this injury that he has, will try to reorganize
the facility.” In defense counsel’s view, the threat to the facility posed by
Dreyer was not, as the district court recalled, based on his “cunning and
manipulative” nature, but rather a consequence of Dreyer’s uncontrollably
inappropriate behavior.
9502                UNITED STATES v. DREYER
  VACATED and REMANDED.



CALLAHAN, Circuit Judge, dissenting:

   I respectfully dissent. I cannot agree that it was plain error
for the district court not to sua sponte order a competency
hearing after Joel Dreyer pleaded guilty and received the ben-
efit of his plea agreement but before sentencing. Dreyer was
represented by competent counsel and had been examined by
a number of doctors. Although all agreed that he suffered
from frontotemporal dementia (“FTD”), none opined that
Dreyer was not competent to participate in his sentencing.
Moreover, although Dreyer chose not to allocute, he was
responsive when the district judge addressed him personally,
stating that he respected the judge and appreciated her com-
ments. Even if the trial judge might have issued a sua sponte
order for further psychiatric and medical evaluations, failure
to do so was not plain error. Moreover, the majority’s unre-
quested reassignment of the case on remand to another judge
is contrary to our norm of remanding to the original sentenc-
ing judge and is unsupported in fact or law.

   I do not question the majority’s genuine doubt regarding
Dreyer’s competence. However, this does not allow it to sub-
stitute its opinion for what a reasonable judge would be
expected to experience. Cf. Chavez v. United States, 656 F.2d
512, 515-16 (9th Cir. 1981) (overruled on other grounds). The
rule reflects the fact that appellate judges viewing the cold
record are not in as good a position to evaluate a defendant’s
competence as the district court judge who has interacted with
the defendant over the course of many hearings. The majority
thus does exactly what we said we could not do in Chavez: it
disguises its own doubts about Dreyer’s competence as what
“a reasonable judge would be expected to experience.” See id.
The record does not show that a reasonable judge would have
experienced a “genuine doubt respecting [Dreyer’s] compe-
                   UNITED STATES v. DREYER               9503
tence,” see id., or that the district judge would not or could
not fairly evaluate Dreyer’s competence on remand.

                      I.   Background

   Between May of 2004 and July of 2007, Dreyer conspired
with his co-defendant to distribute oxycodone, an addictive
Schedule II controlled substance, dispensing over 20,000 pills
over the course of approximately three years. Additionally,
Dreyer unlawfully distributed another 17,746 oxycodone pills
and 78,923 hydrocodone pills independent of his co-
defendant. One of Dreyer’s patients was Jessica Tia Silva,
who died of an overdose of Dreyer’s prescriptions to her.
Another patient was 17-year-old Jeremy Brink, who Dreyer
knew was a minor and without parental consent for treatment.
Nevertheless Dreyer altered the patient’s age on prescriptions
for Norco and Xanax. Dreyer prescribed these patients and
many others lethal quantities of addictive drugs without con-
ducting physical examinations of the patients or taking their
medical histories and received $100-$200 for each prescrip-
tion. On September 21, 2009, Dreyer pleaded guilty pursuant
to a plea agreement, to two counts: (1) conspiracy to possess
with the intent to distribute oxycodone and to distribute oxy-
codone; and (2) unlawful distribution and dispensing of oxy-
codone.

   After Dreyer pleaded guilty but before his sentencing hear-
ing, he underwent several medical and psychological evalua-
tions by four experts. Dr. Daniel G. Amen and Dr. Christine
D. Krause prepared a June 1, 2010 report (the “Amen/Krause
Report”) detailing their findings from their evaluations of
Dreyer. Dr. Amen and Dr. Krause were retained by the
defense. Dr. Amen performed a scan of Dreyer’s brain, and
Dr. Krause (a neuroclinical psychologist) performed a foren-
sic evaluation of Dreyer. The Amen/Krause report concluded
that Dreyer “manifests symptoms of early Frontotemporal
Dementia which has caused him to engage in activities that he
may not have clearly understood such as in the plea agree-
9504               UNITED STATES v. DREYER
ment. He has also exhibited poor judgment in several inci-
dences over the past few years that were not typical of his
behavior prior to his medical emergency.” The report also
explained that patients suffering from FTD commonly have
“executive function and reasoning deficits.”

   On August 9-10, 2010, Dr. Daniel A. Martell (“Dr. Mar-
tell”), a forensic psychologist, also evaluated Dreyer and pre-
pared a report (the “Martell Report”). The purpose of this
evaluation was to determine whether any impairment: (1)
affected Dreyer’s competence to plead guilty; (2) affected
Dreyer’s mental state during the offenses; or (3) will affect
Dreyer’s adjustment or put him at risk in prison. Dr. Martell
agreed that Dreyer had FTD, as “characterized by the cluster
of symptoms exhibited by Dr. Dreyer, including: behavioral
disinhibition, frontal lobe cognitive dysfunction, memory
impairment, loss of smell (anosmia), impaired word-finding
ability (dysnomia), hypersexuality, loss of tact and social pro-
priety, and lack of insight into his own impairments (ano-
sagnosia).” Dr. Martell opined that “[t]his is not to say,
however, that his condition caused him to be unaware of the
nature and consequences of his behavior, or that what he was
doing was wrong. Rather it may mitigate or reduce his culpa-
bility in the eyes of the court as his moral compass was effec-
tively compromised by brain damage over which he had
impaired control.” Significantly, despite his conclusions about
Dreyer’s FTD, Dr. Martell also opined that Dreyer’s guilty
plea was knowing, intelligent, and voluntary. Dr. Martell con-
cluded that Dreyer was “indeed competent to plead guilty.”

   On November 20, 2010, Dreyer was evaluated by Dr. F.
David Rudnick (“Dr. Rudnick”), a psychiatrist specializing in
neurobehavior. Dr. Rudnick reviewed the other two medical
reports and then conducted his own clinical tests of Dreyer.
Id. Dr. Rudnick’s report (the “Rudnick Report”) also con-
cluded that Dreyer exhibited symptoms of FTD. Dr. Rudnick
opined that Dreyer’s “dementia prevented him from accu-
rately critiquing or monitoring his own behavior and from
                   UNITED STATES v. DREYER                    9505
foreseeing its consequences. He was truly convinced that his
actions did not constitute professional violations.” However,
Dr. Rudnick also stated that, with minor exceptions, Dreyer’s
“cognitive skills were intact.”

                 II.   Sentencing Hearing

   On December 13, 2010, over fourteen months after Dreyer
pleaded guilty, the district court conducted Dreyer’s sentenc-
ing hearing. During the sentencing hearing, the district court
judge stated that she had read all of the medical reports and
the defense’s memoranda about Dreyer’s medical condition.
Dreyer did not ask for a competency hearing but instead
requested leniency in sentencing due to his medical condition.
Nonetheless, the court explained that the evidence did not
indicate that Dreyer was incompetent to be sentenced:

    There’s a great deal of medical evidence that’s been
    submitted to the Court about the defendant’s medical
    condition, reports of which, not all of which is really
    substantiated. The self-reporting by the defendant is
    not always substantiated by the medical records.
    That is, the self-reported flat-lining and cardiac
    arrest . . . .

    [A]t the time of the arrest, which is, of course, very
    close in time to the conduct in question, the defen-
    dant spoke for hours to the agents. He was lucid,
    more than lucid, very articulate, cunning; and he lied
    to the detectives, the agents, over and over. He
    wasn’t forgetful. So he may well have deteriorated
    since that time, and there’s been medical evidence
    submitted to the Court about his current condition,
    but that is not necessarily a reason for him not to be
    sentenced now. And a reasonable sentence would
    include a period of incarceration.

  The court further explained that:
9506               UNITED STATES v. DREYER
    The defense relied heavily on the statements con-
    tained in the medical reports of Dr. Martell and Dr.
    Rudnick that he needs further treatment. I agree with
    that, and I believe he should be placed in [a Federal
    Medical Center], but that does not mean he should
    not receive a prison term.

   The court then sentenced Dreyer to 120 months’
imprisonment—the low end of the guidelines range—and
three years of supervised release.

                 III.   Standard of Review

   “On review, [the] inquiry is not whether the trial court
could have found the defendant either competent or incompe-
tent, nor whether [the Court of Appeals] would find the defen-
dant incompetent if [it] were deciding the matter de novo.
Rather, [the Court of Appeals] reviews the record to see if the
evidence of incompetence was such that a reasonable judge
would be expected to experience a genuine doubt respecting
the defendant’s competence.” See Chavez, 656 F.2d at 515-16
(overruled on other grounds). A defendant is competent to
stand trial and be sentenced if he has both a “sufficient pres-
ent ability to consult with his lawyer with a reasonable degree
of rational understanding and a rational as well as factual
understanding of the proceedings against him.” United States
v. Fernandez, 388 F.3d 1199, 1251 (9th Cir. 2004). A district
court’s failure to sua sponte order a competency evaluation is
only error if the evidence of incompetence is such that a rea-
sonable judge would have a genuine doubt about the defen-
dant’s ability to rationally communicate with his attorney and
understand the proceedings. United States v. Marks, 530 F.3d
799, 814 (9th Cir. 2008). The factors this Court considers to
determine whether there was sufficient evidence of incompe-
tence are “the defendant’s irrational behavior, his demeanor in
court, and any prior medical opinions on his competence.” Id.;
see also United States v. White, 670 F.3d 1077, 1082 (9th Cir.
                    UNITED STATES v. DREYER                   9507
2012) (taking into consideration the trial judge’s observation
of the defendant over the course of the proceedings).

   Importantly, “[w]here, as here, the issue is raised for the
first time on appeal, we review a district court’s decision not
to sua sponte order a competency hearing for plain error.” See
Marks, 530 F.3d at 814 (citing Fernandez, 388 F.3d at 1250-
51). “Plain error is ‘(1) error, (2) that is plain, and (3) that
affect[s] substantial rights.’ ” Id. (alterations in original)
(quoting United States v. Thornton, 511 F.3d 1221, 1225 n.2
(9th Cir.2008)). “If these conditions are met, an appellate
court may exercise its discretion to correct the error ‘only if
(4) the error seriously affect[s] the fairness, integrity, or pub-
lic reputation of judicial proceedings.’ ” Thornton, 511 F.3d
at 1225 n.2 (quoting Johnson v. United States, 520 U.S. 461,
467 (1997)).

                         IV.   Analysis

   The district court did not err in failing to sua sponte order
that Dreyer be evaluated for competency prior to imposing the
sentence. A critical feature of this case, and one that distin-
guishes it from the cases relied upon by the majority, is that
Dreyer is only claiming that he was not competent to be sen-
tenced. He does not allege that he was incompetent to be tried
or to plead guilty. Moreover, he admits that he “did not mani-
fest any observable signs of incompetency during the sentenc-
ing hearing.” Rather, he argues for the first time on appeal
that medical reports he sought—after he entered a plea agree-
ment but before he was sentenced—required that the district
court sua sponte order a competency hearing, even though he
never requested a competency hearing. A fair review of the
record shows that there was no plain error and that even if
there were error, it did not “seriously affect the fairness, integ-
rity, or public reputation of judicial proceedings.” Cf. Thorn-
ton, 511 F.3d at 1225 n.2.
9508                UNITED STATES v. DREYER
  A.   Dreyer’s    Medical       Evaluations      Were      Not
       Conclusive.

   Dreyer’s medical evaluations indicate that while he suffers
from FTD and has some related mental deficiencies, these
deficiencies do not rise to the level of the legal standard of
incompetence. One of the doctors expressly concluded that
Dreyer was competent and another concluded that his “cogni-
tive skills were intact.” Dreyer does not attempt to demon-
strate that his FTD prevented him from rationally conferring
with his counsel or understanding the proceedings, which is
the definition of legal incompetence. He does not explain how
his diagnosis relates to this standard of incompetence, but
instead makes the misleading inference that impaired judg-
ment and degenerative brain damage is equivalent to legal
incompetence. In doing so, he conflates medical standards
with the applicable legal standard of incompetence. Dreyer’s
medical records and behavior do not suggest that he had diffi-
culty rationally conferring with his counsel and rationally
understanding the proceedings. Instead, the record shows that
he interacted with his attorneys and the court thoughtfully and
even drafted a document titled “Brain Damage” during the
presentence investigation, writing “[t]his is sad that I have a
brain lesion of my frontal lobe but it could very well be the
thing that keeps me out of federal prison.” It appears that
Dreyer rationally understood the nature of the proceedings
against him and his attorney’s strategy for seeking a reduced
sentence.

   Case law indicates that it is not sufficient to point out that
a defendant has a medical ailment causing decreased brain
function. Rather, the evidence must also reasonably indicate
that the ailment prevented the defendant from rationally inter-
acting with his attorney and understanding the sentencing pro-
ceedings. See Marks, 530 F.3d at 814; Fernandez, 388 F.3d
at 1251. There is no such evidence of this kind of causal rela-
tionship here. Dr. Martell expressly reported that his findings
regarding Dreyer’s FTD did not indicate that “his condition
                   UNITED STATES v. DREYER                9509
caused him to be unaware of the nature and consequences of
his behavior, or that what he was doing was wrong.” Dr. Mar-
tell further opined that Dreyer’s guilty plea was knowing,
intelligent, and voluntary. Another doctor, Dr. Rudnick,
reported that with minor exceptions, Dreyer still has func-
tional cognitive skills. The district court had before it three
medical examinations by four medical doctors, none of which
indicated that Dreyer was legally incompetent.

  B.   Dreyer Did Not Exhibit Signs of Incompetence in
       Court.

   The district court, having observed Dreyer’s conduct over
the course of multiple hearings, reasonably thought he was
competent. Dreyer himself admits that he “did not manifest
any observable signs of incompetency during the sentencing
hearing.” There is nothing in the record indicating that Dreyer
exhibited signs of incompetency or unusual behavior in court.
Moreover, Dreyer’s attorney who had extensive off-the-
record interactions with Dreyer never indicated that he was
incompetent. This is significant because the district court
judge was entitled to expect that if there was a serious ques-
tion as to Dreyer’s competence, his attorney would raise the
issue. Attorneys are the primary gatekeepers and have an
affirmative duty to investigate their client’s mental state “if
there is evidence to suggest that the defendant is impaired.”
See Douglas v. Woodford, 316 F.3d 1079, 1085 (9th Cir.
2003).

   The majority makes much of the fact that Dreyer chose not
to allocute. See Maj. Op. at 9493-95. Dreyer’s attorney stated
that he would not allocute because he might contradict him-
self or “speak inappropriately,” and the majority suggests that
this should have signaled Dreyer’s incompetence to the dis-
trict court judge. However, the record supports other possible
explanations for Dreyer’s silence. At the sentencing hearing,
the judge noted that Dreyer had lied to the detectives “over
and over.” Accordingly, Dreyer may have declined to speak
9510               UNITED STATES v. DREYER
to avoid having to explain his prior falsehoods and avoid the
risk of uttering additional falsehoods.

   In any case, there is no case law indicating that a decision
not to allocute necessarily means that a defendant is incompe-
tent to participate in his own sentencing hearing. A defendant
may decline allocution for strategic reasons as well as for rea-
sons related to a disability, mental health issues, or a host of
behavioral concerns that do not rise to the level of incompe-
tence. Since many criminal defendants do not enjoy perfect
mental health or behave within social norms, the majority
cannot mean that every time a defendant represented by coun-
sel has a history of mental health and/or behavioral issues and
chooses not to allocute, a court has a sua sponte duty to order
a competency hearing. A decision not to allocute may be a
factor in evaluating whether the trial court should have “expe-
rienced a genuine doubt respecting the defendant’s compe-
tence,” but without clearer evidence of incompetency in the
medical records or unusual behavior in court, it is not enough.
Cf. Chavez, 656 F.2d at 515-16.

  C.   The Majority Relies On Factually Distinguishable
       Cases.

   The cases cited by the majority do not support granting
relief because: (1) they concern claims of incompetence to
stand trial—not incompetence to be sentenced; (2) most con-
cern pro se defendants—not defendants represented by coun-
sel; and (3) all involved substantial histories of psychosis
and/or severe brain damage—considerably more than is pres-
ent in this case. See, e.g., Pate v. Robinson, 383 U.S. 375,
385-86 (1966) (defendant had a brick dropped on his head,
walked around in a daze, and defendant’s mother stated that
he had “lost his mind”); Torres v. Prunty, 223 F.3d 1103,
1104-06 (9th Cir. 2000) (defendant was diagnosed with a
severe delusional disorder, had extensive brain damage from
head trauma, and had uncontrollable outbursts in court); Odle
v. Woodford, 238 F.3d 1088-90 (9th Cir. 2001) (defendant
                   UNITED STATES v. DREYER                 9511
suffered from hallucinations, was committed to a psychiatric
ward at least four times, and had a temporal lobectomy
removing a 3x3x4 inch piece of his brain).

   In asserting that his medical evaluations evidence his
incompetence, Dreyer relies extensively on Odle. The facts in
Odle were very different. Odle claimed he was incompetent
to stand trial because: (1) he had a lengthy medical history
demonstrating severe mental health issues; (2) there was wit-
ness testimony indicating severe mental impairment, halluci-
nations, and multiple commitments to a psychiatric ward; and
(3) he was “missing a piece of his brain the size of a grape-
fruit.” Id. at 1088-90. Consequently, we held that there was
substantial evidence of incompetence and the trial court
should have ordered a competency evaluation sua sponte. Id.
The Court reasoned that “[w]here a petitioner has suffered
massive trauma to his brain and subsequently exhibits psy-
chotic behavior, some of it while awaiting trial, an inquiry
into whether he possesses the mental acuity to participate in
the proceedings is the reasonable and appropriate course of
action.” Id. at 1089.

   Unfortunately, Dreyer does have brain damage, but that is
where the similarities between his case and the Odle case end.
Likewise, the other cases that Dreyer relies on are distinguish-
able. In United States v. Morris, 414 F.2d 258, 258-59 (9th
Cir. 1969), Morris challenged his conviction and sentence
based on evidence that he had a history of severe mental ill-
ness and multiple documented periods of psychosis. The med-
ical record in Dreyer’s case does not contain the indicia of
incompetence as present in Odle and Morris. On the contrary,
Dr. Martell opined that Dreyer was competent to plead guilty,
and Dr. Rudnick found that Dreyer’s cognitive skills were
intact.

  Moreover, the majority’s seminal case, United States v.
Duncan, 643 F.3d 1242 (9th Cir. 2011), does not support its
opinion for several reasons. First, Duncan involved the defen-
9512               UNITED STATES v. DREYER
dant’s competence to represent himself during the penalty
phase hearing and to waive his own right to appeal. Duncan,
643 F.3d at 1248-49. Indeed, defense counsel had moved for
a competency hearing and the trial court denied the motion
and allowed Duncan to proceed without counsel. Id. at 1242-
48. We accordingly first held that standby counsel could
appeal (against Duncan’s wishes), and then we determined
that Duncan was not competent to waive both his right to
counsel and his right to appeal. Id. at 1244-49. Second, in
Duncan, there was considerably more evidence of incompe-
tence than is present in Dreyer’s case. In Duncan:

    Standby counsel produced reports from three
    experts, all well established and highly regarded in
    the field of neuropsychiatry, who had examined
    Defendant personally and had found him to suffer
    from—in the words of one of the experts—
    “delusional beliefs, paranoia, grandiosity, and psy-
    chotic breaks with reality.” All three experts formed
    the same opinion that—in the words of another of
    the experts—Defendant’s “mental diseases and
    defects render him incapable of rationally under-
    standing and participating in the proceedings, and
    therefore incompetent.”

Id. at 1249.

   In contrast to the facts in Duncan, none of the doctors who
examined Dreyer intimated that he was “incapable of ratio-
nally understanding and participating” in the sentencing pro-
ceedings. Dr. Martell opined that Dreyer’s guilty plea was
knowing, intelligent, and voluntary. Another doctor, Dr. Rud-
nick, reported that with minor exceptions, Dreyer’s “cognitive
skills were intact.” Dr. Amen and Dr. Krause concluded that
Dreyer “manifests symptoms of early Frontotemporal Demen-
tia [“FTD”] which has caused him to engage in activities that
he may not have clearly understood” and that Dreyer “exhib-
ited poor judgment in several incidences.” However, that
                    UNITED STATES v. DREYER                 9513
report did not make any express finding regarding Dreyer’s
competence as three experts did in the Duncan case. Duncan
is thus distinguishable on its facts, its procedural posture, and
its standard of review.

  D.   A Finding of Plain Error is Inconsistent with Our
       Prior Cases.

   When the record indicates that the defendant has a medical
or mental health condition that may affect the brain but does
not interfere with the defendant’s ability to rationally consult
with his attorney and understand the proceedings, this Court
has not found sufficient evidence of incompetence. See, e.g.,
White, 670 F.3d at 1081-85 (defendant’s angry outbursts in
court and report indicating that White may have suffered from
delusions was not substantial evidence of incompetence);
Davis v. Woodford, 384 F.3d 628, 646-47 (9th Cir. 2004)
(defendant’s depression and irrational conduct during trial
was not substantial evidence of incompetence); United States
v. Mendez-Sanchez, 563 F.3d 935, 939-40 (9th Cir. 2009)
(defendant’s irrational behavior and difficulties communicat-
ing with his lawyer was not substantial evidence of incompe-
tence).

  Most recently in White, we found that the district court did
not err in failing to hold a sua sponte competency hearing in
a case where the defendant lashed out in the courtroom,
shouting obscenities and threats, spitting, and generally dis-
rupting the proceedings. White, 670 F.3d at 1081. White’s
behavior was so uncontrollable that “[d]uring the twenty-five
days of trial, White was able to remain in court without inci-
dent on only four days. On the other days, he either had to be
removed or did not appear in the courtroom.” Id. At some
point during the trial, the court also received a report that
White may have suffered from delusions. Id. at 1084. How-
ever, while recognizing that “[t]hese alleged delusions, in
connection with White’s repeated inappropriate behavior,
may suggest that White had some kind of mental problem—
9514                   UNITED STATES v. DREYER
or they may not,” we concluded that the district court had not
erred in failing to hold a sua sponte competency hearing
because “[t]he trial judge had significant evidence suggesting
that White knew that he was on trial for serious crimes and
that a potential consequence could be life imprisonment.” Id.

   Dreyer is not entitled to any relief under White’s analysis.1
In fact, there is even less evidence of incompetence here than
in White. There were no outbursts and Dreyer was able to
acknowledge his rights and ask questions during the sentenc-
ing hearing. Dreyer was also able to participate respectfully
and appropriately. Id. Additionally, the doctors’ reports did
not undermine the district court’s determination—based on its
experience with Dreyer and his demeanor—that Dreyer was
competent to be sentenced. Dreyer is suffering from the early
stages of FTD, and while the medical record indicates that he
may have impaired judgment and lowered inhibitions, there is
no indication in any of the three medical reports that he did
not understand the proceedings against him and could not
adequately participate in his own defense. See Fernandez, 388
F.3d at 1251.
   1
     The majority cites White for the proposition that “we must conduct, as
White reaffirms, a ‘comprehensive [review] not limited by either the abuse
of discretion or clearly erroneous standard.’ ” Maj. Op. at 9497, n.3.
Unlike the situation in White, where White’s competence was repeatedly
questioned in the trial court and White’s multiple outbursts interrupted the
trial, here Dreyer’s competence to be sentenced is raised for the first time
on appeal. Thus, White is not contrary to our decisions providing that
where “the issue is raised for the first time on appeal, we review a district
court’s decision not to sua sponte order a competency hearing for plain
error.” See Marks, 530 F.3d at 814 (citing Fernandez, 388 F.3d at 1250-
51). Moreover, that White involved a defendant who had already had one
competency hearing is a distinction without a difference since competency
is an ongoing question and should be evaluated at every stage of the pro-
ceedings. What is relevant in White is its factual analysis of the trial
judge’s observations of the defendant’s behavior in the courtroom in com-
bination with the reports about the defendant’s mental health. White, 670
F.3d at 1081-84. Here, Dreyer’s reasonable behavior in the court was con-
sistent with the medical reports indicating that he was competent to be
sentenced.
                    UNITED STATES v. DREYER                  9515
E.     Any Error Did Not Affect the Fairness, Integrity, or
       Public Reputation of the Judicial System.

   Even if the district court erred in proceeding to sentence
Dreyer (which it did not), under Marks, Dreyer would only be
entitled to relief if the error “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” See
Marks, 530 F.3d at 814 (quoting Thornton, 511 F.3d at 1225
n.2). Dreyer fails to demonstrate that there is any error rising
to this level. Here, Dreyer was represented by counsel, who
having obtained medical evaluations of Dreyer after he
pleaded guilty, did not alert the court that Dreyer was incom-
petent to be sentenced. Cf. Douglas, 316 F.3d at 1085 (finding
that attorneys have a duty to request a competency hearing “if
there is evidence to suggest that the defendant is impaired”).
Therefore, Dreyer’s attorney’s failure to do so was a strategic
choice based on his belief in his client’s competence. Dreyer’s
attorney only referenced these medical reports to seek
leniency in sentencing. In this context, the fairness, integrity,
and public reputation of the judicial proceedings would not be
blemished by the Court’s denial of relief based on an issue
raised by counsel for the first time on appeal.

  F.    Any Error Does Not Warrant Remand to a
        Different Judge

   Finally, I dissent from the majority taking it upon itself to
remand this case to a different district judge when Dreyer did
not request such action. Cf. Maj. Op. at 9499-9501. Resen-
tencing is normally performed by the same district court judge
who originally sentenced the defendant. See United States v.
Mikaelian, 168 F.3d 380, 387-88 (9th Cir. 1999). We only
remand for resentencing to a different judge in “unusual cir-
cumstances,” and this case does not present such circum-
stances. Id.

  The fact that a judge did not sua sponte order a competency
hearing after a represented defendant pleaded guilty cannot
9516               UNITED STATES v. DREYER
constitute an “unusual circumstance.” Otherwise, every chal-
lenge to a failure by the district court to act sua sponte would
constitute an “unusual circumstance.” Moreover, as noted,
Dreyer does not challenge his competence to have pleaded
guilty, and admits that he “did not manifest any observable
signs of incompetency during the sentencing hearing.”

   In Mikaelian, we noted that although “resentencing would
normally be performed by the same district judge who origi-
nally sentenced the defendant,” in unusual circumstances,
resentencing before a different judge may be appropriate
based on the consideration of three factors:

    (1) whether the original judge would reasonably be
    expected upon remand to have substantial difficulty
    in putting out of his or her mind previously
    expressed views or findings determined to be errone-
    ous or based on evidence that must be rejected, (2)
    whether reassignment is advisable to preserve the
    appearance of justice, and (3) whether reassignment
    would entail waste and duplication out of proportion
    to any gain in preserving the appearance of fairness.

168 F.3d at 387-88 (citations and quotations omitted).

   The record indicates that the district court judge can and
will fairly evaluate Dreyer’s mental competence. First, it
should be noted that the remand is not initially directed to the
district court judge’s discretion. Rather, the district court is
directed to conduct a further competency hearing. Presum-
ably, at such a hearing the parties will submit additional evi-
dence. Second, the district court judge has already indicated
her sensitivity to Dreyer’s medical condition. At the sentenc-
ing hearing, she commented that “[t]he defense relied heavily
on the statements contained in the medical reports of Dr. Mar-
tell and Dr. Rudnick that he needs further treatment. I agree
with that, and I believe he should be placed in [a Federal
                    UNITED STATES v. DREYER                 9517
Medical Center].” She then sentenced Dreyer to the lower end
of the Guidelines range.

   The majority points to the fact that, during the hearing on
the motion for bail pending appeal, the district court com-
mented on Dreyer’s competence. This was appropriate
because the motion for bail pending appeal involved an evalu-
ation of the likelihood of success on the merits of the pending
appeal. In particular, Dreyer had indicated that he would chal-
lenge the failure to sua sponte order a further competency
hearing in his appeal. Moreover, the judge’s comments were
based on materials that were properly before her and were
moderate in tone. The court summarized its impressions of
Dreyer at the sentencing hearing as follows:

    He acknowledged his right to allocute. He acknowl-
    edged his appeal rights. He consulted with his law-
    yer quietly and respectfully at several points during
    the sentencing, and it’s my recollection that he did
    that in particular during the points when the victim,
    the young woman who had died as a result of an
    overdose of the prescription drugs which Mr. Dreyer
    prescribed, when her twin brother spoke. . . . When
    in open court, the twin brother was speaking,
    [Dreyer’s] affect showed complete comprehension
    and, frankly, showed some anger rather than com-
    passion towards the family member, but there was
    no evidence of lack of competence.

Thus, a review of the record offers no sound ground for ques-
tioning the district court’s objectivity with regard to Dreyer,
even assuming that the judge somehow erred in not sua sponte
ordering a further competency hearing.

   The majority’s assertion that the “district judge indicate[ed]
that she has already determined without the benefit of a hear-
ing . . . that Dreyer is competent and that a full evidentiary
hearing is unnecessary,” flips the standard on its head. Cf.
9518               UNITED STATES v. DREYER
Maj. Op. at 9501. The observation is necessarily true in all
cases involving failures to sua sponte order competency hear-
ings. By definition a judge who does not sua sponte order a
competency hearing must have “already determined without
the benefit of a hearing” that the defendant is competent. Oth-
erwise, the judge would have had a reasonable doubt about
competence and ordered a competency hearing. The majori-
ty’s reasoning is circular.

   The second factor—“whether reassignment is advisable to
preserve the appearance of justice,” Mikaelian, 168 F.3d 387
—does not support the majority’s reassignment. As noted, the
district court treated Dreyer respectfully, Dreyer participated
in the proceedings in an appropriate manner, and at sentenc-
ing Dreyer even expressed his appreciation for the district
court judge, stating “I respect you” and “I appreciate your
comments.” In this situation, it is this court’s unrequested—
and unnecessary—reassignment that compromises the appear-
ance of justice, as it may well be read as encouraging a defen-
dant to belatedly claim that the district court judge should
have acted sua sponte in the hope of thereby obtaining a dif-
ferent judge on remand (should the defendant prevail on
appeal). This portion of the majority’s opinion could also be
viewed as an appellate court expressing an opinion—without
the benefit of further medical evaluations and a hearing—that
Dreyer is in fact incompetent and that the judge that is reas-
signed for sentencing is expected to find Dreyer incompetent.
This does not promote the “appearance of justice.” Cf. Mik-
aelian, 168 F.3d at 387.

   Last, the third factor weighs heavily against reassignment.
The district judge has considerable experience with Dreyer
and his counsel. This is particularly important in light of
Dreyer’s abilities. His own counsel reportedly stated that
“[p]utting him in a prison will mess up the facility because
Dr. Dreyer, based on this injury he has, will try to reorganize
the facility” and “[h]e will be running the place really because
                      UNITED STATES v. DREYER                       9519
he is so intelligent and he is so cunning and manipulative.”2
Accordingly, reassignment would entail waste and duplication
by forcing a new judge to familiarize himself or herself with
a defendant who has the ability to try to manipulate the sys-
tem, if he has not already done so.

   Although each case is unique, the circumstances of this
case are not particularly unusual and do not meet the standard
for reassignment on remand set forth in Mikaelian, 168 F.3d
at 387-88. There is no evidence in the record suggesting that
“the original judge would reasonably be expected upon
remand to have substantial difficulty in putting out of his or
her mind previously expressed views,” or that reassignment is
“advisable to preserve the appearance of justice,” or that the
reassignment would not “entail waste and duplication.” Id.

   In my view, the majority overreaches not only in faulting
the district court judge for not making a sua sponte order but
also in then finding that she cannot be fair on remand in a
case where the issue of Dreyer’s competence was raised for
the first time on appeal. The majority’s approach will have a
chilling effect on district court judges who are always
required to determine a defendant’s competence in the first
instance. Respect for this task requires that we defer to their
reasonable judgments. Our usual course of remanding for
resentencing to the judge who originally sentenced a defen-
dant should be followed unless there is clear objective evi-
dence that the district court judge would have difficulty
putting aside her previously expressed views. Because there
is no such evidence in this case, we should presume that the
original sentencing district court judge is able to perform her
duties normally on resentencing.
  2
   The majority objects that the district court judge misstated defense
counsel’s representations. However, there is considerable evidence in the
record that Dreyer is intelligent, cunning, and manipulative. Accordingly,
even if the district court judge did misinterpret defense counsel’s state-
ment about Dreyer reorganizing the prison facility, such a mistake does
not indicate that the judge could not fairly resentence Dreyer.
9520                UNITED STATES v. DREYER
                        V.   Conclusion

   The district court reasonably concluded that Dreyer was
competent to be sentenced, and even if she was mistaken,
there is no good reason to find that she is incapable of resen-
tencing Dreyer in accordance with the majority’s instructions
on remand. Accordingly, I dissent from the majority’s opin-
ion. First, although Dreyer’s medical evaluations indicate that
he suffers from FTD and has some related mental deficien-
cies, none of the reports indicate that these deficiencies inter-
fered with his ability to consult with his lawyer or to
understand the proceedings against him. Second, although
Dreyer chose not to allocute, neither the records nor the dis-
trict court’s observations of Dreyer’s behavior in the court-
room indicate that he was incompetent to be sentenced. Third,
none of the cases cited by the majority support granting relief
to a represented defendant who behaves normally in court and
has no compelling evidence of incompetence. Fourth, grant-
ing Dreyer relief is inconsistent with out recent opinion in
White, directing deference to the trial judge’s judgment. Fifth,
even if the district court did err, the error does not seriously
affect the fairness, integrity, or reputation of the judicial pro-
ceedings. Last, but not least, even if the district court did err,
there are insufficient grounds for departing from our normal
practice of remanding to the original sentencing judge for
resentencing. Dreyer did not request such relief, and the
majority’s sua sponte direction is not supported by the facts
or the law. The majority improperly substitutes its evaluation
of Dreyer, based on a cold and inconclusive record, for the
trial judge’s determination that was based not only on the
medical record but on Dreyer’s conduct in court. Because the
district court did not err in sentencing Dreyer without sua
sponte ordering a competency hearing, I would affirm.
