           Case: 15-10577   Date Filed: 01/29/2016   Page: 1 of 8


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10577
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:12-cr-00342-WBH-GGB-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                  versus


GERRY SANDERS,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (January 29, 2016)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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        This is a bank robbery case. On September 19, 2012, Gerry Sanders entered

the Citizens Trust Bank in Decatur, Georgia. Pointing at the teller what appeared

to be a silver pistol, Sanders demanded all the $100 bills the teller had. When the

bank security guard drew his weapon and shouted “freeze,” Sanders turned the

pistol on the guard and made a run for the door. The security guard fired several

shots. One of the bullets, or shrapnel from the bullet, grazed a teller. Another

bullet struck Sanders in the knee, and the guard subdued him. The pistol Sanders

appeared to be carrying turned out to be a toy gun.

        Sanders was indicted for attempted bank robbery, in violation of 18 U.S.C. §

2113(a) and (d). At his arraignment, a magistrate judge appointed counsel for

Sanders, who was indigent. A month later, the attorney requested a hearing on

Sander’s competency to stand trial. He represented that Sanders was

uncooperative, referring to counsel as the Devil, maintaining that Jesus was his

attorney, and communicating primarily with religious phrases and quotations. The

magistrate judge counsel’s granted the request and ordered Sanders examined.

        Sanders was examined by three doctors. 1 All submitted their reports. The

magistrate judge thereafter held an evidentiary hearing on Sanders’s competency.

One of the three doctors, Dr. Buigas, testified. The magistrate judge found Sanders

competent to stand trial---that he was malingering symptoms of mental illness and


1
    They were Drs. Matthew Norman, Michael Hilton and Rodolfo Buigas.
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that his refusal to participate in his own defense was a deliberate attempt to avoid a

trial. Sanders objected to the competency findings, and the magistrate judge

overruled it. Prior to the date set for Sanders’s trial, his attorney renewed his

objection, this time before the district court. The court overruled it.

      A jury subsequently found Sanders guilty as charged, and the district court

sentenced him to a prison term of 175 months. Sanders now appeals both his

conviction and sentence. He seeks a new trial on the ground that the district court

erred in finding that he was malingering symptoms of mental illness and was

competent to stand trial. He challenges his sentence on three grounds: the district

court erred in (1) enhancing (under the Sentencing Guidelines) the base offense

level of his offence by two levels for obstruction of justice because of his

malingering; (2) imposing a seven-level firearm-discharge enhancement, because

he did not discharge a firearm himself, but only induced a security guard to

discharge his firearm; and (3) imposing a substantively unreasonable sentence in

light of the 18 U.S.C. § 3553(a) sentencing factors. We first consider Sanders’s

argument that the court erred in finding him competent to stand trial.

                                           I.

      Because a district court’s competency determination is primarily factual in

nature, we review a court’s decision on competency to stand trial only for clear

error. United States v. Izquierdo, 448 F.3d 1269, 1276, 1278 (11th Cir. 2006). A


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finding of fact is considered clearly erroneous only when we are left with a definite

and firm conviction that a mistake has been committed. Id. at 1278. We give due

regard to the trial court’s opportunity to assess the credibility of witnesses. Id.

Accordingly, where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous. Id. at 1279.

      The test for determining competence to stand trial is whether a defendant has

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

rational understanding and whether he has a rational and factual understanding of

the proceedings against him. United States v. Rahim, 431 F.3d 753, 759 (11th Cir.

2005). The competency inquiry is functional, and focuses on a defendant’s

capacity to sufficiently contribute to his own defense to allow for a fair trial. Watts

v. Singletary, 87 F.3d 1282, 1286 (11th Cir. 1996). Because the competency

determination looks at the capacity of a particular defendant to play a specific role

at trial, it requires a case-by-case assessment. Id. at 1289.

      We conclude that the district court did not clearly err in finding Sanders

competent to stand trial. The court reviewed de novo the magistrate judge’s report,

which credited the testimony of Dr. Buigas. Dr. Buigas concluded that Sanders

was malingering his symptoms, because there was no evidence of any symptoms

other than his recitation of religious phrases. Dr. Buigas observed that Sanders

appeared to recite religious phrases only when he was aware that he was being


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evaluated for competency purposes. His testimony was plainly sufficient to

establish Sanders’s competence. His conviction is therefore due to be affirmed.

                                         II.

      In considering whether the district court erred in imposing the obstruction-

of-justice sentencing enhancement, we review for clear error the court’s factual

findings and de novo its application of those findings under the sentencing

guidelines. United States v. Doe, 661 F.3d 550, 565 (11th Cir. 2011). A two-level

enhancement for obstruction of justice applies where:

      (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.

U.S.S.G. § 3C1.1. Because an obstruction-of-justice enhancement would increase

the offense level, the government has the burden of proving its applicability. See

United States v. Bailey, 961 F.2d 180, 181 (11th Cir. 1992).

      A defendant “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.” United States v. Patti, 337 F.3d 1317, 1325 (11th Cir. 2003) (quotations

omitted). Thus, an obstruction-of-justice enhancement is appropriate where a

defendant’s feigned mental illness forced his trial to be postponed and caused the

government to waste resources on a competency examination. Id.
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      Based on its finding that Sanders was malingering, the district court

correctly applied the obstruction-of-justice enhancement, for Sanders willfully

obstructed the administration of justice with respect to the investigation,

prosecution, and sentencing of the instant offense. Though he had a constitutional

right to a competency hearing, he did not have a right to create doubt as to his

competency by feigning his symptoms. The obstruction-of-justice enhancement

punishes his decision to malinger, not his counsel’s decision to request a

competency hearing. Thus, the court did not err in applying it.

                                         III.

      A seven-level firearm-discharge enhancement applies “[i]f a firearm was

discharged” in the course of a robbery. U.S.S.G. § 2B3.1(b)(2)(A). When a

defendant induces another person to discharge a firearm during the commission of

an offense, that discharge is attributable to the defendant for purposes of U.S.S.G.

§ 2B3.1(b)(2)(A). United States v. Williams, 51 F.3d 1004, 1011 (11th Cir. 1995),

abrogated on other grounds by Jones v. United States, 526 U.S. 227, 231-32, 119

S. Ct. 1215, 1218-19, 143 L. Ed. 2d 311 (1999). Acts or omissions of another that

are brought about, produced, or caused by the defendant’s conduct are attributed to

the defendant. United States v. McQueen, 670 F.3d 1168, 1170 (11th Cir. 2012).

      As Sanders concedes, the district court correctly imposed a seven-level

enhancement under § 2B3.1(b)(2)(A). He conceded the point because it is


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undisputed that he pointed his toy gun at the bank teller and the security guard and

thereby induced the security guard to discharge his own firearm.

                                         IV.

      We review the reasonableness of a sentence under a deferential abuse of

discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591, 169 L. Ed. 2d 445 (2007). Sanders’s sentence is within the guidelines

sentence range, and although we do not automatically presume that a sentence

within the range is reasonable, we ordinarily expect it to be. United States v. Hunt,

526 F.3d 739, 746 (11th Cir. 2008).

      A district court is required to impose a sentence “sufficient, but not greater

than necessary, to comply with the purposes” listed in 18 U.S.C.          §

3553(a)(2). Id. We will vacate a sentence “if, but only if, we are left with the

definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” United

States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation omitted).

      The district court did not abuse its discretion by denying a downward

variance and imposing a within-guidelines sentence of 175 months’ imprisonment.

The within-guidelines sentence is subject to an expectation of reasonableness. The

fact that the sentence is well below the statutory maximum is another indicator of


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its reasonableness. The court properly considered the sentencing factors set out in

18 U.S.C. § 3553(a) factors, such as the seriousness of the offense and the need to

deter a repeat offender like Sanders, when it imposed its sentence. Finally, the

court did not abuse its discretion by imposing a sentence consistent with §

2B3.1(b)(2)(A)’s firearm-discharge enhancement, which was properly applied,

because Sanders induced the security guard to discharge his firearm by pointing a

toy gun at him. Sanders does not cite any authority for his argument that the court

abused its discretion by declining to vary downward from the guideline sentence

range to correct for an enhancement that was properly applied. In fine, we reject

Sanders’s argument that his sentence is uneasonable.

      For the foregoing reasons, Sanders’s conviction and sentence are

      AFFIRMED.




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