     Case: 17-10972       Document: 00514589221         Page: 1     Date Filed: 08/07/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                     No. 17-10972                            FILED
                                   Summary Calendar                     August 7, 2018
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                  Plaintiff - Appellee

v.

EUSTACIO SOTO, III, also known as Chito,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:17-CR-12-1


Before BARKSDALE, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
       Eustacio Soto, III, was convicted of conspiracy to distribute, and to
possess with intent to distribute, 50 grams or more of methamphetamine, in
violation of 21 U.S.C. § 846. He was sentenced, inter alia, to 188 months’
imprisonment.        Soto’s claims concern the denial of his motion for a
psychological evaluation, including an implicit request for a competency
hearing.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                 No. 17-10972

      Under 18 U.S.C. § 4241, a district court must order a competency
hearing “if there is reasonable cause to believe that the defendant may
presently be suffering 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). Along that line, in deciding whether to order
the hearing, the court also may order a psychological evaluation of defendant.
18 U.S.C. § 4241(b).
      Whether reasonable cause exists to evaluate defendant’s competency “is
left to the sound discretion of the district court”. United States v. Davis, 61
F.3d 291, 304 (5th Cir. 1995).    Its decision is reviewed for abuse of that
discretion. United States v. Messervey, 317 F.3d 457, 463 (5th Cir. 2002).
      Soto’s contention that the court did not rule on his request for a
competency hearing is belied by the record: the court cited the 18 U.S.C.
§ 4241(a) standard in its ruling. And, Soto’s assertion that that court was
required to grant his motion for a competency hearing because he presented
good-faith grounds is unavailing, as that decision, as noted, is left to the
discretion of the court. Messervey, 317 F.3d at 463; Davis, 61 F.3d at 304.
      In addition, Soto maintains the court abused its discretion in denying his
motion for a psychological evaluation. The medical evidence, however, did not
show Soto might be suffering from a mental disease or defect.         Although
counsel asserted Soto had difficulty grasping legal theories, there was no
evidence Soto could not comprehend the nature and the consequences of the
proceedings against him.
      In the light of the evidence adduced at the hearing, the court did not
abuse its discretion in denying Soto’s request for a psychological evaluation
and a competency hearing. E.g., Messervey, 317 F.3d at 463.



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                                  No. 17-10972

      Soto claims the magistrate judge erroneously made a competency
determination at the hearing on his motion for a psychological evaluation.
Because he did not raise this issue in his objections to the magistrate judge’s
report and recommendation, review is only for plain error. See United States
v. Francis, 183 F.3d 450, 452 (5th Cir. 1999). Under that standard, Soto must
show a forfeited plain error (clear or obvious error, rather than one subject to
reasonable dispute) that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the
discretion to correct such reversible plain error, but generally should do so only
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings”. Id.
      The magistrate judge’s report and recommendation and the district court
order explained the court’s discretion to order an evaluation and the 18 U.S.C.
§ 4241(a) standard for whether to grant a motion for a competency hearing.
The court applied the correct standard in addressing Soto’s motion for a
psychological evaluation and did not make a competency determination in that
regard. Thus, Soto has not shown the requisite plain error. E.g., Puckett, 556
U.S. at 135.
      AFFIRMED.




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