                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                 FILED
                                                         U.S. COURT OF APPEALS
                               No. 09-11605                ELEVENTH CIRCUIT
                                                            DECEMBER 7, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                D. C. Docket No. 08-00107-CR-FTM-99-DNF

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

DEAN LAWTHER,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                              (December 7, 2009)

Before DUBINA, Chief Judge, BARKETT and FAY, Circuit Judges.

PER CURIAM:

     Appellant Dean Lawther appeals his conviction for transporting a visual
depiction involving the sexual exploitation of minors in interstate commerce in

violation of 18 U.S.C. § 2252(a)(1) and (b)(1). On appeal, Lawther argues that his

conviction should be vacated and his case remanded to the district court for further

proceedings because his due process rights were violated. Lawther claims that the

district court should have sua sponte ordered a competency hearing at sentencing

pursuant to 18 U.S.C. § 4241(a) because the information he presented was

sufficient to raise a bona fide doubt of Lawther’s competency. To substantiate his

position, Lawther notes that Dr. Frederick Schaerf, a psychiatrist who testified at

sentencing, specifically detailed Lawther’s history of sexual abuse, learning

difficulties, drug and alcohol abuse, anxiety, depression, and low intelligence. In

addition, Lawther emphasizes that he told the district court that his medications

were out of control, that he was suffering from depression, and that he was having

mood swings and other psychological issues. Accordingly, Lawther contends that

the district court’s failure to conduct at least some inquiry into his competency,

including questions regarding the amount and types of medications that he was

using, and to order a competency hearing amounted to reversible error.

       We review a district court’s failure to order a competency hearing sua

sponte under an abuse of discretion standard. See United States v. Williams, 468




                                           2
F.2d 819, 820 (5th Cir. 1972)1 (interpreting a prior version of 18 U.S.C. § 4241(a)

and stating that “the district court did not abuse its discretion in failing to order sua

sponte a hearing on the appellant’s competency to stand trial.”). See also United

States v. Lindsey, 2009 WL 2345209 (11th Cir. Jul. 31, 2009) (No. 08-14916)

(relying on Williams).

           Section 4241(a) of Title 18 of the U.S. Code provides that:

       [a]t any time after the commencement of a prosecution for an offense
       and prior to the sentencing of the defendant . . . . The court shall . . .
       order [a hearing to determine mental competency] on its own motion,
       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); see also 18 U.S.C. § 4244(a) (requiring the court to sua

sponte order a hearing to determine whether a defendant is in need of treatment for

a mental disease or defect prior to sentencing, but after the defendant’s conviction,

if there is substantial information indicating that the defendant is suffering from a

mental disease or defect). “Whether [a] defendant is competent is an ongoing

inquiry; the defendant must be competent at all stages of [the] trial [including



       1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to October 1, 1981.


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sentencing].” United States v. Rahim, 431 F.3d 753, 759 (11th Cir. 2005) (per

curiam).

       Accordingly, “[a] district court must conduct a competency hearing when

there is a ‘bona fide’ doubt regarding the defendant’s competence.” Id. The test

for determining competence to stand trial is whether the defendant “has sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding-and whether he has a rational as well as factual understanding of the

proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct.

788, 789, 4 L. Ed. 2d 824 (1960) (per curiam). Lastly, when a defendant’s counsel

fails to raise the issue of a defendant’s competency at the trial level, this is

“persuasive evidence that [the defendant’s] mental competence was not in doubt.”

United States v. Rodriguez, 799 F.2d 649, 655 (11th Cir. 1986).

       Because the record demonstrates that Lawther was both able to aid in his

defense and understand the proceedings against him, we conclude that there was no

bona fide doubt as to his competency at sentencing. Accordingly, the district court

did not err in failing to conduct a competency hearing, and we affirm Lawther’s

conviction.

       AFFIRMED.




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