                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 03 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10306

              Plaintiff - Appellee,              D.C. No. 4:13-cr-01677-JGZ-JR-1

  v.
                                                 MEMORANDUM*
DOUGLAS ENRIQUE LOPEZ-VIVAS,
AKA Sergio Ernesto Velasquez-Flores,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 14-10307

              Plaintiff - Appellee,              D.C. No. 4:14-cr-50002-JGZ-JR-1

  v.

DOUGLAS ENRIQUE LOPEZ-VIVAS,
AKA Sergio Ernesto Velasquez-Flores,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Jennifer G. Zipps, District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     Argued and Submitted November 18, 2015
                             San Francisco, California

Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.

      Douglas Enrique Lopez-Vivas appeals his conviction under 8 U.S.C. § 1326

for illegal reentry, as well as the revocation of his term of supervised release

imposed pursuant to a prior illegal reentry conviction. We have jurisdiction under

28 U.S.C. § 1291 and affirm his conviction and the revocation of his supervised

release.



      A district court’s failure to sua sponte hold a competency hearing is

reviewed for plain error. United States v. Garza, 751 F.3d 1130, 1134 (9th Cir.

2014). We review the district court’s admission of prior acts evidence under

Federal Rule of Evidence 404(b) for abuse of discretion. United States v.

Hardrick, 766 F.3d 1051, 1055 (9th Cir. 2014).



      It would be plain error to fail to hold a competency hearing where “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. Dreyer, 705 F.3d 951, 961 (9th Cir. 2013) (internal citation and quotation marks



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omitted). To raise such a doubt, there must be “substantial evidence that, due to a

mental disease or defect, the defendant is either unable to understand the nature

and consequences of the proceedings against him or to assist properly in his

defense.” Garza, 751 F.3d at 1134 (internal citation and quotation marks omitted)

(emphasis in original). To assess the situation, we look at three categories of

evidence: the defendant’s medical history, the defendant's behavior in and out of

court, and the defense counsel's statements about the defendant's competency. Id.



      The district court did not commit plain error in failing to hold a sua sponte

competency hearing. There was no medical history evidence of any mental disease

or defect. See id. at 1135 (“[A]n appellant who has absolutely no medical history

evidence indicating incompetency will almost certainly fail to upset his

conviction.”); United States v. Neal, 776 F.3d 645, 655-56 (9th Cir. 2015) (“A

defendant must present ‘strong’ medical evidence of a serious mental disease or

defect before a genuine doubt about competency will arise.”) (citation omitted).



      Lopez-Vivas’s behavior in and out of court was not so erratic that it would

cause a judge to doubt his competency. Id. at 657 (“[C]ompetency will not be

questioned when a defendant merely displays rude, uncooperative and sometimes


                                          3
wacky behavior.”); cf. Maxwell v. Roe, 606 F.3d 561, 570-71 (9th Cir. 2010)

(competency should have been questioned where defendant attempted suicide

during trial); Tillery v. Eyman, 492 F.2d 1056, 1057-58 (9th Cir. 1974)

(competency should have been questioned where the defendant’s outbursts

included laughing at the jury and ripping off his clothes during trial, and screaming

from his jail cell throughout the night). Though he did not always obey the district

judge’s instructions when speaking in court, Lopez-Vivas’s conduct was not so

bizarre as to require a sua sponte competency hearing. Neal, 776 F.3d at 657.

Lopez-Vivas evidently believed that receiving enhanced sentences on two prior

occasions on account of his assault with a deadly weapon conviction was unfair

because he had already served his sentence for the original crime. He also believed

that he had been improperly deported on two prior occasions. Accordingly, his

decision to forgo a plea offer and his decision to offer unsolicited testimony about

his prior conviction for assault with a deadly weapon were not irrational. See

United States v. Mendez-Sanchez, 563 F.3d 935, 947-48 (9th Cir. 2009). His

actions comported with his not irrational feelings about what was fair, which a jury

inclined toward nullification might accept.




                                          4
      Finally, Lopez-Vivas’s counsel never expressed any concerns about his

competency to stand trial or receive his sentence. He expressly said there were no

competency issues with Lopez-Vivas. See Hernandez v. Ylst, 930 F.2d 714, 718

(9th Cir. 1991) (“[A] defendant’s counsel is in the best position to evaluate a

client’s comprehension of the proceedings.”). The district court judge noted

Lopez-Vivas got along well with his counsel.



      The district court did not abuse its discretion by admitting evidence of

Lopez-Vivas’s prior convictions for illegal reentry. Lopez-Vivas testified that he

mistakenly entered the United States. The Government sought to introduce his

prior convictions as evidence of a lack of mistake and to impeach his testimony to

the contrary. Thus, the convictions were relevant as something other than

propensity evidence and they were admissible under Rule 404(b). Fed. R. Evid.

404(b)(2); see United States v. Verduzco, 373 F.3d 1022, 1029-30 (9th Cir. 2004)

(evidence of prior similar convictions was properly admitted as relevant to rebut

affirmative defense of duress).



      Lopez-Vivas’s counsel never challenged the admission of the convictions

under Rule 403, and the district court’s decision to admit the evidence was neither


                                          5
an abuse of discretion nor plain error. See United States v. Gomez-Norena, 908

F.2d 497, 500 (9th Cir. 1990) (noting we review the district court’s ruling for plain

error where a party fails to preserve a specific evidentiary issue for appeal). We

presume the district court applied the proper Rule 403 balancing, particularly

where it had previously weighed admissibility of the same evidence under Rule

609. See United States v. Cruz-Garcia, 344 F.3d 951, 956 (9th Cir. 2003). The

evidence was not especially prejudicial in the context of this case. See United

States v. Flores-Blanco, 623 F.3d 912, 920 (9th Cir. 2010) (prior acts evidence was

not unduly prejudicial where it was probative of the defendant’s knowledge and

intent, the evidence would not provoke an unfairly emotional response in the jury,

and the court gave a limiting instruction).



      Because we affirm Lopez-Vivas’s conviction for illegal reentry, revocation

of his prior term of supervised release was not error.

AFFIRMED.




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