          United States Court of Appeals
                     For the First Circuit


No. 18-1548

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                         STEVEN NYGREN,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]


                             Before

                 Torruella, Selya, and Kayatta,
                         Circuit Judges.


     Heather Clark, with whom Clark Law Office was on brief, for
appellant.
     Benjamin M. Block, Assistant United States Attorney, with
whom Halsey B. Frank, United States Attorney, was on brief, for
appellee.


                         August 6, 2019
              SELYA, Circuit Judge.          This sentencing appeal poses a

question    of    first    impression    in    this   circuit:      may   feigned

incompetency comprise the basis for an obstruction-of-justice

enhancement and, thus, support an upward offense-level adjustment

under USSG §3C1.1?          We answer this question in the affirmative,

reject the defendant's other assignments of error, and affirm his

sentence.

I. BACKGROUND

              We start by rehearsing the relevant facts and travel of

the case.      During the summer of 2014, defendant-appellant Steven

Nygren was hired as the chief financial officer of Brooklin Boat

Yard   (the    Boatyard),     a   closely      held   corporation     located    in

Brooklin, Maine.          Almost immediately, he began fleecing his new

employer:        in little more than a year, he forged at least 63

checks, totaling over $732,000, and deposited the proceeds into an

account that he controlled.           During the same time span, he also

racked up more than $83,000 in unauthorized purchases on the

Boatyard's credit cards.          Some of the money was spent on personal

expenses and the rest was invested in a store owned by the

defendant.

              Discovering     that    the     Boatyard's    coffers    had     been

depleted,     the   Boatyard's       owner    notified     authorities    of    his

suspicion that the defendant had been forging checks.                          In a

surreptitiously recorded conversation with the owner on September


                                       - 2 -
13, 2015, the defendant admitted to stealing money.              The defendant

then went on the offensive, circulating a letter at his store,

which stated that "there are at least 2 sides to every story" and

that "nothing is ever as it seems."              The letter also accused the

Boatyard's management of misspending and of paying "hush up money"

to women.

              Three   days     after     the      surreptitiously      recorded

conversation, law enforcement officers executed both arrest and

search warrants at the defendant's home.            In due course, a federal

grand jury sitting in the District of Maine charged the defendant

with 63 counts of bank fraud, see 18 U.S.C. § 1344(2), one count

of use of an unauthorized device, see id. § 1029(a)(2), and one

count of tax evasion, see 26 U.S.C. § 7201.              The tax evasion count

was   based    upon   the    defendant's       history   of   filing   false   or

incomplete tax returns (or sometimes, no tax return at all).

              On August 25, 2016, the defendant — who had suffered a

stroke four months earlier — appeared before a magistrate judge

for initial presentment.          Noting that the defendant's medical

condition and motion to obtain a competency evaluation combined to

raise a question of competency, the magistrate judge deferred the

matter for 60 days.         At his postponed arraignment on October 24,

2016, the defendant pleaded not guilty to all counts and indicated

that he planned to file a motion for a competency hearing.               See 18

U.S.C. § 4241(a)-(c).          That motion was filed two weeks later,


                                       - 3 -
accompanied by a letter from the defendant's treating neurologist

and a forensic competency report prepared by a retained expert.

The neurologist's letter noted that the defendant's stroke had

caused "profound deficits" affecting his cognition and memory that

could last "several months, but will slowly improve over time."

The retained expert who prepared the competency report had reviewed

the    defendant's    medical    records,      examined       the   defendant,   and

interviewed the defendant and his wife.               He concluded that — at

the time — the defendant was not legally competent to stand trial.

              The government objected to the motion for a competency

hearing.      It pointed out, among other things, that the defendant

had performed poorly on two tests administered by the defendant's

expert to detect malingering:              the test of memory malingering

(TOMM) and the validity indicator profile (VIP), the latter being

"designed to identify valid and invalid responding."                    Based on his

extremely low scores on these tests, the expert's report warned

that    the   defendant     might   have     been   exaggerating        his   memory

difficulties.         The   district    court    nonetheless        overruled    the

government's objection and granted the defendant's motion for a

competency hearing.         The court ordered, though, that the defendant

continue      his   rehabilitation     and     undergo    a    second    competency

evaluation at a government facility.

              The second competency evaluation was conducted at a

federal Bureau of Prisons (BOP) facility in February and March of


                                       - 4 -
2017.    The BOP evaluator concluded that the defendant was legally

competent to stand trial — a conclusion based in part on her

assessment that the defendant had applied insufficient effort

during    the   examination    process,   resulting   in   feigned   or

exaggerated cognitive limitations consistent with malingering.

The evaluator began by administering the Minnesota Multiphasic

Personality Inventory - Second Edition, a test which includes

"validity scales designed to detect random responding as well as

attempts by an examinee to distort results in a positive or

negative direction."    The defendant's results on these validity

scales, she concluded, were consistent with the exaggeration of

brain injury, cognitive dysfunction, and disability.       Then — after

the defendant had once again failed the same two malingering tests

earlier administered by his own retained expert — the BOP evaluator

terminated her examination, stating that the defendant's results

on those three tests "would serve to invalidate any measures of

cognitive functioning."       With respect to the TOMM, the evaluator

specifically found that the defendant's "scores were significantly

below those that would be expected even of individuals presenting

with the most severe effects of traumatic brain injury."      She also

specifically found that the defendant's self-described memory

deficits surrounding the circumstances of his alleged crimes were

"inconsistent with any known memory functions."       The defendant was




                                  - 5 -
then    re-examined      by    his   own    expert,    who    concurred       with   the

conclusion that the defendant was legally competent.

            In the wake of these reports, the defendant sought to

withdraw his request for a competency hearing and to change his

plea.     The district court, unwilling to accept the defendant's

stipulation to his competency, said that it would conduct a

colloquy and make findings on the defendant's competency before

considering the defendant's proposed change of plea. At a combined

competency and change-of-plea hearing, see Fed. R. Crim. P. 11,

the court found the defendant legally competent and accepted his

guilty plea to all counts.

            But that was not the end of the brouhaha over competency.

In the initial presentence investigation report (PSI Report), the

probation     officer         recommended     a    two-level       enhancement       for

obstruction      of    justice,      see    USSG    §3C1.1,        premised    on     the

defendant's      "systematic,         sustained,       and     intentional          under

performance on objective testing as part of his evaluations in an

effort to present as incompetent to avoid legal culpability."

Employing similar reasoning, the probation officer recommended

against     an        offense-level        reduction         for     acceptance        of

responsibility.         See USSG §3E1.1.           Even though the defendant

objected to these recommendations, both were maintained in the

final version of the PSI Report.




                                       - 6 -
             At a presentence conference, the defendant reiterated

his objections to the PSI Report and apprised the district court

of his desire to offer expert testimony at the disposition hearing.

The government responded that it would present its own expert

testimony and chronicled additional conduct of the defendant that

it viewed as relevant to the disputed recommendations (including

circulating the letter at the store).           Following the conference,

the government filed a sentencing memorandum and the defendant

filed a rejoinder.

             The district court convened the disposition hearing on

May 25, 2018.1     After hearing the proffered expert testimony and

reviewing    the   relevant   materials,      the   court    found    that   the

government had shown by preponderant evidence that the defendant

had   attempted    to   obstruct    justice    through      his   efforts    "to

manipulate     consciously    and    deliberately        the      psychological

evaluations in order to skew the justice system in his favor."

Accordingly, the court concluded that an obstruction-of-justice

enhancement was appropriate.         Then, citing the strong inverse

relationship between obstruction of justice and acceptance of

responsibility, the court found that the defendant had not carried


      1Without regard for its earlier commitment to allow the
presentation of expert testimony at the disposition hearing, the
district court issued a written sentencing order on April 10, 2018.
After the defendant objected, the court vacated the written
sentencing order.   Because that order is a nullity, we do not
discuss it further.


                                    - 7 -
his burden of showing that he qualified for an acceptance-of-

responsibility      credit.      It    added   that,      in    any     event,    the

defendant's       distribution    of     the    letter         (which        denied

responsibility for the charged crimes and tried to shift the blame

to the Boatyard's owner) was inconsistent with acceptance of

responsibility.

            The     applicable   guideline      sentencing         range     (GSR),

calculated with an enhancement for obstruction of justice and

without a credit for acceptance of responsibility, was 87-108

months.    The district court proceeded to sentence the defendant to

95-month incarcerative terms on each of the 63 bank-fraud counts

and 60-month incarcerative terms on the two remaining counts, with

all sentences to run concurrently.             The court also ordered the

defendant to pay restitution in the amount of $815,496.27.                       This

timely appeal followed.

II. ANALYSIS

            In this venue, the defendant asserts that his sentence

was procedurally flawed due to two errors in the calculation of

his GSR.    "Federal criminal sentences imposed under the advisory

guidelines regime are reviewed for abuse of discretion."                    United

States v. Santiago-Rivera, 744 F.3d 229, 232 (1st Cir. 2014).

Within this rubric, we consider claims of procedural error by

"assay[ing] the district court's factfinding for clear error and

afford[ing]    de    novo   consideration      to   its    interpretation        and


                                      - 8 -
application of the sentencing guidelines."                   United States v.

Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

                        A. Obstruction of Justice.

            The defendant's principal plaint concerns the district

court's    determination    that     an     offense-level     enhancement    for

obstruction of justice was warranted.                 This determination was

premised upon the court's finding that the defendant feigned

incompetency.      The defendant challenges that finding both as a

matter of fact and as a matter of law.

            "[T]he obstruction-of-justice enhancement rests on the

rationale that 'a defendant who commits a crime and then . . .

[makes]   an   unlawful    attempt     to   avoid   responsibility     is   more

threatening to society and less deserving of leniency than a

defendant who does not so defy' the criminal justice process."

United    States   v.   Emery,   991    F.2d   907,    912   (1st   Cir.    1993)

(alteration in original) (quoting United States v. Dunnigan, 507

U.S. 87, 97 (1993)). The applicable guideline provision instructs:

            If (1) the defendant willfully obstructed or
            impeded, or attempted to obstruct or impede,
            the administration of justice with respect to
            the investigation, prosecution, or sentencing
            of the instant offense of conviction, and (2)
            the obstructive conduct related to (A) the
            defendant's offense of conviction and any
            relevant conduct; or (B) a closely related
            offense,   [the   sentencing  court   should]
            increase the offense level by 2 levels.




                                     - 9 -
USSG §3C1.1.   The government must prove the applicability of this

enhancement by a preponderance of the evidence.       See United States

v. Quirion, 714 F.3d 77, 79 (1st Cir. 2013).

          It is a common-sense proposition that "a defendant who

feigns incompetency misrepresents his psychiatric condition to his

examiners, intending that they will believe him and convey their

inaccurate impressions to the court."        United States v. Greer, 158

F.3d 228, 237 (5th Cir. 1998).         We review a factual finding of

feigned incompetency only for clear error, and we will disturb

such a finding "only if a review of the record leaves us 'with the

definite and firm conviction that a mistake has been committed.'"

Quirion, 714 F.3d at 79-80 (quoting United States v. U.S. Gypsum

Co., 333 U.S. 364, 395 (1948)).

          Here, the district court specifically found that the

defendant had feigned incompetency, engaging in a pattern of

malingering "in order to skew the justice system in his favor."

In making this finding, the district court acknowledged that the

defendant suffered a significant medical episode that temporarily

diminished his competency.    But even though the defendant exerted

effort in his rehabilitation process, initial examination by the

defendant's    own   expert   raised     a   substantial   question   of

malingering, documented by the results of the TOMM and VIP tests.

Noting this question, the district court wisely ordered further

testing, which yielded similar — but more definitive — results.


                                - 10 -
The court then heard testimony at the disposition hearing from

both experts, who elaborated upon their earlier conclusions:               the

defendant's   expert    conceded      that   malingering   was   at   least   a

possible explanation for the defendant's test scores, and the BOP

expert cogently explained her conclusion that the defendant had

malingered during both of his competency evaluations.

            The   district    court    implicitly     found   these   experts

credible.   The defendant has pointed to nothing that would permit

us to second-guess either this credibility determination or the

feigned incompetency finding that flowed from it.             See id. at 81

("Credibility determinations made at sentencing are peculiarly

within the province of the district court and will rarely be

disturbed on appeal."); United States v. Ruiz, 905 F.2d 499, 505

(1st Cir. 1990) ("The witness'[s] credibility [i]s for the talesman

— not for an appellate court.").         Nor did the defendant challenge

the   validity    of   the   malingering      tests   administered    by   the

competency experts either through a request for a Daubert hearing,

see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93

(1993) (holding that Fed. R. Evid. 702 authorizes a "preliminary

assessment of whether the reasoning or methodology underlying the

testimony [of an expert] is scientifically valid and of whether

that reasoning or methodology properly can be applied to the facts

in issue"), or through arguments to the court.




                                   - 11 -
            We note, moreover, that the district court specifically

rejected        the     defendant's          argument     that    malingering           was

inconsistent          with     the     defendant's      concerted     rehabilitation

efforts.        The court found it not at all implausible that a

defendant       would        attempt    to    improve     his    condition        through

rehabilitation         while     simultaneously         underperforming      on    tests

relevant to his capacity to stand trial.                   So, too, the court was

unswayed by the defendant's suggestion that his selective memory

loss was not indicative of malingering but, rather, was indicative

of a concern that information shared would be used against him

(which   the     defendant       now    imaginatively      recharacterizes         as   an

unannounced invocation of this Fifth Amendment privilege against

self-incrimination).            These supportable findings come well within

the district court's proper province.

            To sum up, we discern no clear error in the district

court's actual finding of feigned incompetency.                   See United States

v. Batista, 483 F.3d 193, 195 (3d Cir. 2007) (concluding that

district court did not clearly err in finding feigned incompetency

where defendant underwent five examinations, the first of which

found him incompetent); United States v. Aldawsari, 740 F.3d 1015,

1021 (5th Cir. 2014) (finding no clear error when district court

relied     on    expert        report    concluding       defendant    had        feigned

incompetency, despite contrary expert testimony).                   "[I]f there are

two plausible views of the record, the sentencing court's choice


                                          - 12 -
between them cannot be clearly erroneous."                   United States v.

Santos, 357 F.3d 136, 141 (1st Cir. 2004); accord Ruiz, 905 F.2d

at 508.

            Even    though   we   uphold    the   district    court's   factual

finding of feigned incompetency, we still have some unfinished

business.    The court's use of that finding as the foundation of an

obstruction-of-justice enhancement raises an important question,

as yet unresolved in this circuit:                may feigned incompetency

comprise the basis for an obstruction-of-justice enhancement and,

thus,   support     an   upward    offense-level    adjustment     under   USSG

§3C1.1?     This is a question of law, engendering de novo review.

See United States v. Moreno, 947 F.2d 7, 10 (1st Cir. 1991).

            Although this is a question of first impression, we do

not approach it without some guidance.                  The commentary to the

sentencing guidelines, "which we generally treat as authoritative

unless it conflicts with federal law," United States v. Cates, 897

F.3d 349, 354 (1st Cir. 2018), is instructive.              That commentary is

circumspect as to the scope of what it means to obstruct the

administration of justice, stating generally that "the conduct to

which     th[e]    adjustment     applies   is    not    subject   to   precise

definition" and adding that "[o]bstructive conduct can vary widely

in nature, degree of planning, and seriousness."              USSG §3C1.1 cmt.

n.3.




                                     - 13 -
              The commentary does, however, describe some limitations

to the enhancement's application.                  For instance, a defendant's

choice to exercise a constitutional right does not constitute

obstruction of justice.               See id. cmt. n.2.         Nor do inaccurate

testimony or statements that "result from confusion, mistake, or

faulty memory."           Id.

              The application notes (part of the commentary) do supply

a non-exhaustive list of examples of obstructive conduct.                 See id.

cmt.   n.4.         That    conduct    includes,    inter   alia,   "threatening,

intimidating, or otherwise unlawfully influencing a co-defendant,

witness, or juror, directly or indirectly, or attempting to do

so"; "producing or attempting to produce a false, altered, or

counterfeit document or record during an official investigation or

judicial proceeding"; "providing materially false information to

a   judge   or      magistrate    judge";   "providing      a   materially   false

statement      to     a    law   enforcement     officer    that    significantly

obstructed or impeded the official investigation or prosecution of

the instant offense"; and "providing materially false information

to a probation officer in respect to a presentence or other

investigation for the court." Id.              This list can be compared with

its inverse — a list entitled "Examples of Conduct Ordinarily not

Covered."      Id. cmt. n.5.       Pertinently, this list includes "making

false statements, not under oath, to law enforcement officers,"

unless such statements significantly obstructed or impeded the


                                        - 14 -
official investigation or prosecution of the instant offense, and

"providing incomplete or misleading information, not amounting to

a material falsehood, in respect to a presentence investigation."

Id.   Feigning incompetency does not appear on either list.

             We    think     the   application   notes   make   pellucid     that

obstruction of justice is capacious enough to encompass a broad

swathe of conduct.          See United States v. Voccola, 99 F.3d 37, 46

(1st Cir. 1996) (stating that the "Application Notes are plain

that a wide range of conduct will suffice to properly enhance a

sentence for obstruction of justice"); see also United States v.

Maccado, 225 F.3d 766, 771 (D.C. Cir. 2000) (noting that "egregious

as well as non-egregious conduct" alike appear within the covered

conduct list).       And in keeping with the tenor of those application

notes, our determination must be tethered to considerations such

as the nature and gravity of the defendant's conduct and the

likelihood        that      such   conduct     will    interfere    with      the

administration of justice.            See United States v. Wahlstrom, 588

F.3d 538, 544 (8th Cir. 2009) (citing USSG §3C1.1 cmt. n.3); Greer,

158 F.3d at 235.

             Against this backdrop, we turn to the case at hand.               At

the outset, we note that the type of conduct involved in feigning

incompetency closely resembles several of the listed examples of

obstructive       conduct    (including   attempting     to   produce   a   false

record and providing materially false information to a judge or


                                      - 15 -
probation officer).          And since a defendant "is accountable for

[his] own conduct and for conduct that [he] . . . counseled,

commanded, induced, procured, or willfully caused," USSG §3C1.1

cmt. n.9, it seems logical that he should be held responsible for

erroneous conclusions that he has caused another to reach.                           See

United    States     v.   Owolabi,     69    F.3d    156,    164   (7th    Cir.     1995)

(upholding        district   court's        imposition       of    enhancement      when

defendant, inter alia, "most assuredly facilitated the conveying

of false information to the court through his counsel").                       Seen in

this light, feigned incompetency fits neatly within the listed

examples of obstructing conduct.               See United States v. Cline, 332

F. App'x 905, 910-11 (4th Cir. 2009); Greer, 158 F.3d at 235.

             In     all   events,     the     guideline       commentary      strongly

suggests that the obstruction-of-justice enhancement should be

construed to encompass feigned incompetency.                        Such conduct is

"serious[]," USSG §3C1.1 cmt. n.3, as criminal proceedings are

stalled while a defendant is deemed incompetent to stand trial,

see 18 U.S.C. § 4241(d).             In addition, feigning incompetency in

order to secure protections put in place for those who are actually

unfit to stand trial threatens to undermine those protections.

Thus, such opprobrious conduct has the potential not only to evade

justice    in      the    individual        case    but     also   to     disrupt     the

administration of justice more broadly.




                                       - 16 -
             There is more.             Regardless of whether a defendant's

pretense of incompetency is successful, a serious risk exists that

his efforts will significantly impede or at least delay the

progress of his case.             After all, a court confronted with a

question of legal competency must tread carefully and determine

whether the defendant has "sufficient present ability to consult

with his lawyer . . . [and] a rational as well as factual

understanding of the proceedings against him."                       Rosenthal v.

O'Brien, 713 F.3d 676, 684 (1st Cir. 2013) (quoting Dusky v. United

States, 362 U.S. 402, 402 (1960) (per curiam)); see 18 U.S.C.

§ 4241(a).      This       is   often    a    painstaking,    drawn-out      process.

Consequently, even if the court ultimately finds the defendant

competent, substantial time and resources will likely have gone

down the drain due to the defendant's malingering.

             This reasoning applies with equal force when a defendant

has not spun a fictitious illness from whole cloth but, rather,

has willfully exaggerated the symptoms of a genuine illness in a

manner intended to influence a competency assessment. See Batista,

483   F.3d     at     195-96      (affirming       district     court's      feigned

incompetency finding when defendant intentionally did not take

medication "to increase his chances of being found incompetent");

United States v. Patti, 337 F.3d 1317, 1320, 1325 (11th Cir. 2003)

(affirming     application         of        enhancement     based      on    feigned

incompetency        when    defendant        exaggerated     symptoms    after    car


                                         - 17 -
accident).     After all, "even if there is sufficient evidence to

justify a competency hearing absent the defendant's machinations,

feigning incompetency during a psychiatric evaluation would always

seem to increase the risk that the defendant will erroneously be

found incompetent."     Greer, 158 F.3d at 238.

             Of course, a criminal defendant should not have to fear

that raising a genuine question of competency will adversely affect

his case.     But we are confident that imposing an obstruction-of-

justice   enhancement    on   a   defendant   who   deliberately   feigns

incompetency in order either to avoid or delay his trial (and,

thus, his punishment) will not subject his right to request a

competency hearing to an unconstitutional chilling effect.         Accord

United States v. Bonnett, 872 F.3d 1045, 1046-47 (9th Cir. 2017)

(per curiam); Batista, 483 F.3d at 197-98; Patti, 337 F.3d at 1325;

Greer, 158 F.3d at 237.       "While a criminal defendant possesses a

constitutional right to a competency hearing if a bona fide doubt

exists as to his competency, he surely does not have the right to

create a doubt as to his competency or to increase the chances

that he will be found incompetent by feigning mental illness."

Greer, 158 F.3d at 237.       We add, moreover, that interpreting the

obstruction-of-justice        enhancement     to    encompass      feigned

incompetency serves to bolster the constitutional rights of those

who are legally incompetent by discouraging imposters.          After all,

without this means of deterrence, judges no doubt would feel


                                  - 18 -
obligated to approach any invocation of those rights with greater

skepticism.        We hold, therefore, that feigned incompetency may

comprise the basis for an obstruction-of-justice enhancement.

This holding aligns our court with all of our sister circuits that

have spoken to the issue.        See Bonnett, 872 F.3d at 1047; United

States v. Wilbourn, 778 F.3d 682, 684-85 (7th Cir. 2015); Cline,

332 F. App'x at 909; Batista, 483 F.3d at 197; United States v.

Binion, 132 F. App'x 89, 93 (8th Cir. 2005) (per curiam); Patti,

337 F.3d at 1325; Greer, 158 F.3d at 235.

             The defendant struggles to deflect this holding.             He

argues that his efforts to feign incompetency were not material,

that they were not related to any relevant conduct, and that, in

any event, his malingering did not significantly obstruct or impede

the investigation or prosecution of the charged crimes.               These

arguments lack force.

             The first component of the defendant's asservational

array rests on a problematic premise.          He posits that his false

statements    to    competency   evaluators   must   cross   a   materiality

threshold before triggering the enhancement.         This argument sweeps

too broadly:    although materiality is mentioned in the application

notes and is defined as "evidence, fact, statement, or information

that, if believed, would tend to influence or affect the issue

under determination,"      USSG §3C1.1 cmt. n.6, the application notes

do not uniformly demand a finding of materiality.            Only a handful


                                   - 19 -
of the examples (those related to providing materially false

information or statements) contain such a requirement.           See id.

cmt. n.4.

            Here,   however,   we   need   not     decide   whether   the

materiality requirement applies beyond those delineated examples.

Ordinarily, "materiality is a case-by-case issue," United States

v. Biyaga, 9 F.3d 204, 205 (1st Cir. 1993), and we review a district

court's finding of materiality for clear error, see United States

v. Feldman, 83 F.3d 9, 13 (1st Cir. 1996).          Having discerned no

clear error in the district court's finding that the defendant

engaged in a pattern of malingering that amounted to feigned

incompetency, we can safely say that if a materiality requirement

pertains here, it would be satisfied.       As the Fifth Circuit has

observed, "a criminal defendant's sanity is always material:          If

he succeeds at convincing the court of his incompetency, he does

not only increase his chances at acquittal, as he would if he

committed perjury or falsified a record; he makes it impossible to

even try him."      Greer, 158 F.3d at 235.       It follows, we think,

that a finding of feigned incompetency will usually jump any hurdle

posed by a materiality requirement.

            Next, the defendant argues that his obstructive conduct

was not related to any relevant conduct.         This argument draws its

essence from the requirement that obstructive conduct must be

"related to . . . the defendant's offense of conviction and any


                                - 20 -
relevant conduct."     USSG §3C1.1.   In turn, the guidelines define

"relevant conduct" as "all acts and omissions committed, aided,

abetted, counseled, commanded, induced, procured, or willfully

caused by the defendant . . . that occurred during the commission

of the offense of conviction, in preparation for that offense, or

in the course of attempting to avoid detention or responsibility

for that offense."     Id. §1B1.3(a)(1).

          The defendant submits that his actions did not comprise

an attempt to avoid responsibility for his crimes because he did

not possess the requisite intent.     See United States v. White, 335

F.3d 1314, 1319 (11th Cir. 2003) (holding that inquiry into

relevant conduct "requires the sentencing judge to assess the

defendant's   intent    for    committing   the   additional     crime").

Effectively, then, the defendant invites us to retrace his steps

to determine whether he participated in good faith in the serial

competency evaluations.       We decline his invitation:       we already

have determined that the district court did not commit clear error

in finding that the defendant feigned incompetency "in order to

skew the justice system in his favor," and this finding implicitly

incorporates a subsidiary finding that the defendant acted with

the intent to avoid responsibility for his crimes.         His conduct

was, therefore, undeniably "relevant."

          The defendant's final sally fares no better. He contends

that feigned incompetency may comprise obstruction of justice only


                                 - 21 -
when   it    "significantly       obstructed         or     impeded     the     official

investigation     or    prosecution     of    the     instant     offense."          This

language is derived from one (and only one) of the examples of

covered conduct in the application notes:                  "providing a materially

false statement to a law enforcement officer."                     USSG §3C1.1 cmt.

n.4(G).     But that cherry-picked example can be contrasted with two

other examples, which specify, respectively, that an obstruction-

of-justice     enhancement      may     lie    when        a    defendant       provides

"materially false information to a judge or magistrate judge" or

"to a probation officer in respect to a presentence or other

investigation for the court."           Id. cmt. n.4(F), (H).             These latter

examples     carry     no   requirement       that        the   conduct       must    have

"significantly       obstructed    or    impeded"         the   case.         And    since

attempted conduct may ground the enhancement, see USSG §3C1.1; see

also Wilbourn, 778 F.3d at 684 ("[S]uccess is not a requirement

for imposing an enhancement for obstruction of justice — an attempt

will do as well."), it is plain that the offending conduct need

not have had any effect on the case.

             In an effort to turn the tide, the defendant counters

that the statements at issue here were provided "to someone other

than a court officer" and, thus, his conduct bears a closer

resemblance to providing false information to a law enforcement

officer.     So, he says, his conduct could not comprise obstruction

of justice within the purview of the enhancement unless it impeded


                                      - 22 -
the progress of the case.     This construction elevates hope over

reason.

            Stripped to its essence, the defendant's conduct is more

similar to providing materially false information to a probation

officer than to a law enforcement officer.        Like the role of a

probation officer, the role of a competency evaluator is to furnish

relevant information to the court.      Necessarily, then, statements

to a competency evaluator are made with the defendant's full

knowledge that they are likely to impact his court case.           In

contrast, communications to law enforcement officers face a higher

bar because such communications are often "made on the spur of the

moment and [may] reflect panic, confusion, or mistake."        Greer,

158 F.3d at 235. We deem it implausible that the extra precautions

surrounding obstructive conduct occurring in interactions with law

enforcement officers were intended to extend to a context in which

no similar concerns arise.       Thus, we reject the defendant's

argument and conclude that in order to impose the enhancement, a

sentencing court is not required to find that an incompetency-

feigning defendant has, in the process, significantly obstructed

or impeded the official investigation or prosecution of the crimes

charged.2


     2 Of course, a sentencing court may take any such impediment
(or the absence thereof) into account when determining whether to
impose the obstruction-of-justice enhancement. See Batista, 483
F.3d at 197; Patti, 337 F.3d at 1325. Although we cannot know


                               - 23 -
            That ends this aspect of the matter. We discern no error

in the district court's application of the obstruction-of-justice

enhancement on the basis of the defendant's feigned incompetency.

                   B. Acceptance of Responsibility.

            The defendant has another string to his bow:             he takes

aim at the district court's refusal to grant him an offense-level

reduction for acceptance of responsibility.              See USSG §3E1.1.   The

defendant's arrow misses his target.

            A   reduction    for   acceptance       of     responsibility    is

available "[i]f the defendant clearly demonstrates acceptance of

responsibility for his offense."       Id.    A "defendant has the burden

of proving his entitlement to an acceptance-of-responsibility

credit, and the sentencing court's determination to withhold the

reduction will be overturned only if it is clearly erroneous."

United States v. Franky-Ortiz, 230 F.3d 405, 408 (1st Cir. 2000)

(quoting United States v. Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir.

1993)).

            Our determination that the sentencing court did not err

in imposing an obstruction-of-justice enhancement goes a long way

toward    defeating   the   defendant's     quest   for    an   acceptance-of-



precisely how the defendant's case would have unfolded absent his
malingering, in part due to the legitimate question of competency
raised by his stroke, it is crystal clear that his conduct delayed
proceedings by at least several months. So viewed, the district
court had ample reason to find that this delay supported
application of the enhancement.


                                   - 24 -
responsibility credit.    Barring some extraordinary circumstance or

set of circumstances, a defendant who has received an obstruction-

of-justice enhancement normally is ineligible for an acceptance-

of-responsibility credit. See USSG §3E1.1 cmt. n.4. The instances

in which the two may go hand in hand are "hen's-teeth rare."

United States v. Maguire, 752 F.3d 1, 6 (1st Cir. 2014).

           There are no hen's teeth to be found here.         The district

court explicitly found that "the case [wa]s not extraordinary,"

remarking that the defendant's pretended incompetency went "to the

very heart of the judicial process."        The defendant identifies no

error in this finding, instead reiterating his arguments against

the court's application of the obstruction-of-justice enhancement

in the first place.      In any event, this finding easily passes

muster   under   clear-error   review3    and,   therefore,   the   court's

refusal to shrink the defendant's offense level for acceptance of

responsibility is unimpugnable.




     3 This supportable finding makes it unnecessary for us to
address the defendant's attack on the district court's alternative
finding that the defendant's circulation of the blame-shifting
letter at his store indicated that he had not accepted
responsibility for his crimes.     For the sake of completeness,
though, we note that the defendant's argument — that conduct
preceding the filing of federal charges cannot be considered when
assessing acceptance of responsibility — was not aired below.
Since "legal theories not raised squarely in the lower court cannot
be broached for the first time on appeal," Teamsters Union, Local
No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992),
the argument is waived.


                                 - 25 -
III. CONCLUSION

            We need go no further. For the reasons elucidated above,

the judgment of the district court is



Affirmed.




                               - 26 -
