                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-3588
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                     Brian Scott Dahl, also known as Kodiak

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                    for the District of North Dakota - Bismarck
                                   ____________

                          Submitted: September 10, 2015
                            Filed: November 30, 2015
                                  ____________

Before LOKEN, MELLOY, and GRUENDER, Circuit Judges.
                           ____________

MELLOY, Circuit Judge.

      Defendant Brian Scott Dahl appeals the district court’s1 denial of his motion
seeking a psychological examination and competency hearing. We affirm the
judgment of the district court.


      1
       The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.
I. Background

       Pursuant to a plea agreement, Dahl pleaded guilty to one count of conspiring
to distribute more than 500 grams of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and 846, and one count of possessing a firearm in furtherance of a drug
trafficking offense, in violation of 18 U.S.C. §§ 922(g)(1) and 924(c)(1)(A). The
conspiracy count carried a 120-month mandatory minimum sentence, and the firearm
count carried a consecutive, 84-month mandatory minimum sentence.

        At the change-of-plea hearing on October 16, 2013, the court and Dahl
discussed his mental and physical health and personal history. During the
discussion—and during the entire hearing—Dahl exhibited memory lapses. For
example, he did not recall how far he had progressed in high school but he knew he
had received a GED. Dahl confirmed to the court that the factual basis for the plea
as set forth in the plea agreement was accurate. Dahl's attorney interjected that Dahl
had difficulty remembering the quantities involved. Dahl then discussed with the
court his sale of methamphetamine, including persons to whom he sold, locations, his
sources, and the general time frames for transactions. He did not always recall
precise details and quantities. He also claimed to have no recollection of an earlier,
video-taped interview with police during which he confessed to selling large
quantities. Dahl explained his poor memory was the product of both a traumatic brain
injury (resulting from a 2007 truck accident) and oxycontin use (he claimed to have
been high during the police interview). Dahl entered into the plea agreement with the
hope and expectation that cooperation with the government would lead the
government to file a substantial assistance motion pursuant to United States
Sentencing Guidelines Manual § 5K1.1 and 18 U.S.C. § 3553(e), thus permitting a
sentence below the otherwise-applicable seventeen-year statutory minimums.

      Due to attempts at cooperation and motions by the parties, sentencing was
delayed for approximately one year until November 3, 2014. As early as January

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2014, however, it had become clear the government did not believe the information
Dahl provided was useful and a substantial assistance motion would be unlikely. On
September 4, 2014, Dahl filed a pro se letter seeking appointment of new counsel.
His hand-written letter, dated August 18, 2014, attacked counsel's performance and
complained about a lack of access to counsel and materials. The court denied his
request, finding the motion untimely and also finding access to certain materials
unnecessary because Dahl had already pleaded guilty and only his sentencing
remained. On October 20, 2014, Dahl filed another pro se letter which the court
interpreted as a motion to reconsider the initial ruling denying the request for new
counsel. In the second letter, Dahl again complained about a lack of access to his
attorney and indicated a sense of urgency, noting, "I am 2 weeks away from
sentencing. I have many legal questions. I've been left completely in the dark. And
I have been threatened with what amounts to a life sentence." Dahl's second letter
stated he wanted a mental evaluation by a neuropsychologist in North Dakota but his
attorney would not schedule an evaluation. The court denied the motion to
reconsider.

       Also on October 20, 2014, more than one year after Dahl's plea hearing and
after attempts at cooperation did not result in a departure motion, Dahl’s attorney
filed three separate motions: a motion for a psychological examination and
competency hearing; a motion to withdraw Dahl's guilty plea alleging incompetency
at the time of the plea hearing; and a motion to compel the government to file a
substantial-assistance motion. The court denied the motion to withdraw in a written
order, stating its belief that, based on record presented (including the plea colloquy
and medical records), Dahl had been competent at the time he entered his plea.

      At the November 3, 2014 sentencing hearing, the court denied the motion to
compel a substantial assistance motion, holding the court lacked authority to compel
such a motion in the absence of a showing that the government acted in bad faith or
with an unconstitutional motive. The court then orally addressed the motion for a

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competency hearing and examination, finding no reasonable basis to believe Dahl
was incompetent and denying the motion. The court reiterated its observations from
the plea hearing and stated emphatically the view that Dahl had been competent at
that time. The court also indicated concerns with Dahl's credibility surrounding his
physical and mental limitations. In this regard, the court noted that it had asked the
coconspirators about Dahl's mental and physical capabilities, and the coconspirators
did not report witnessing deficiencies. The court also indicated that Dahl had
represented at the plea hearing that he suffered substantial physical limitations, but
the court later saw a video of Dahl taken while Dahl was detained between the plea
hearing and the sentencing hearing. In the video, Dahl "move[d] in a rather quick and
agile manner to rush over and strike some other inmate."

      The court imposed the mandatory minimum 204-month (seventeen-year)
sentence. Dahl became irate at the government's refusal to move for a cooperation-
based departure, the court's refusal to order such a motion, and the ultimate sentence
imposed. Dahl yelled at the court, the government's attorney, and the marshals. Dahl
was upset because he believed he had debriefed truthfully in an attempt at
cooperation and was receiving no benefit whereas his coconspirators had lied and
received greater benefits.

       Dahl also was angry regarding the interpretation of an incident described in his
presentence investigation report (PSR) regarding his uncharged involvement in the
kidnaping, detention, and assault of a coconspirator. According to the PSR, Dahl's
coconspirators kidnaped a fellow conspirator, beat him (resulting in a broken rib), and
struck him in the face with a gun before tying him to a chair and leaving him for
several hours. One member of the group later returned with Dahl, and the two men
repeatedly tased the victim. Dahl pointed a gun at the victim's head while another
coconspirator sharpened a bladed weapon. Dahl then shoved a bandana into the
victim's mouth with sufficient force to cause the victim's jaw to "pop." Dahl then
threatened to kill him, and, at Dahl's instruction, another coconspirator struck the

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victim's outstretched hand directly with a hammer. The group then locked the victim
in a cellar where they kept him for as long as two days and repeatedly injected him
with methamphetamine. Eventually the group released the victim, threatening him
and his family with future harm if he went to the police. Dahl characterized his
participation in the event as an attempt to save the victim's life. According to Dahl,
the other conspirators would have killed the victim and Dahl had to play along and
act like he was in control of the situation to save the victim. Dahl had similarly
asserted at his plea hearing that his involvement in the kidnaping and assault had
saved the victim's life.

       On appeal, Dahl challenges only the denial of his motion for a competency
hearing and examination. He challenges neither the denial of his motion to withdraw
his plea nor the denial of his motion to compel a substantial assistance motion. In
arguing the district court should have ordered an examination and hearing, Dahl cites
medical reports predating his plea hearing, his testimony at the plea hearing, and his
own statements and outbursts at sentencing. In addition, Dahl relies upon the
arguments of his attorney who asserts Dahl's mental condition deteriorated between
the plea hearing and sentencing hearing.

      Medical evidence showed Dahl suffered physical injuries when he crashed his
vehicle into a logging truck in 2007. He had several surgeries to address injuries
from the accident, and medical reports diagnosed him with "mild cognitive
impairment." In a 2008 disability assessment generated for insurance purposes, the
reviewing physician, Dr. Annette Weller, provided an opinion based on personal
observations and findings reported by other physicians. Dr. Weller described Dahl
as cooperative and pleasant in her own interactions. She summarized records from
a 2007 neuropsychiatric exam, stating, "Areas of relative weakness were noted in
overall auditory attention, speed of information processing, verbal fluency, and
confrontation naming. The DSM-IV diagnosis provided was cognitive disorder, not
otherwise specified. Cognitive rehabilitation was suggested." Dr. Weller recounted

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her own observations from a July 2007 exam noting "mild traumatic brain injury"
with "disconjugate gaze" and recommending "further evaluation by a
neurooptometrist." She also reported her observations from a November 2007
evaluation:

      [f]or cognitive impairment related to the mild head injury, Mr. Dahl was
      working with speech therapy. He reports that he completed speech
      therapy last week. He reports that he continues to have problems with
      short-term memory. For example, he reports that when he is doing
      mechanic type work, taking something apart, he forgets how to put it
      back together. He describes slow processing. He relies heavily on a
      Day Planner. In addition, [he] reports occasional word finding
      problems. He is not impaired from routine activities of daily living, as
      well [as] higher tasks, with hope of returning to regular work activity.
      (Emphasis added)

Ultimately, Dr. Weller rated Dahl's cognitive impairment as a "5% whole person
impairment related to patient's problems with short-term memory and attention,
increased reliance on Day Planner and notes."

       Finally, Dahl's attorney argued that, based on his personal interactions with
Dahl, Dahl's mental state had deteriorated in the year between the plea hearing and
the sentencing hearing. The attorney, however, did not opine that Dahl was unable
to understand the nature or consequences of the proceedings. He also did not assert
Dahl was unable to assist in the defense. At sentencing, Dahl's attorney read a letter
from Dahl's sister who described the effects of Dahl's brain injury as anger issues and
short-term memory issues.

II. Discussion

      A defendant must be competent at all stages of the prosecution,
      including sentencing. A defendant is competent to stand trial or face

                                         -6-
      sentencing if he has sufficient present ability to consult with his lawyer
      with a reasonable degree of rational understanding and has a rational as
      well as factual understanding of the proceedings against him.

United States v. Casteel, 717 F.3d 635, 641 (8th Cir. 2013) (citations omitted).
Mental illness and cognitive impairment are not synonymous with incompetence,
however, and "a mental deficiency or . . . bizarre, volatile, and irrational behavior
does not necessarily make [a defendant] incompetent to stand trial." United States v.
Ghane, 593 F.3d 775, 779 (8th Cir. 2010) (citations omitted).

       Because "competency is not static and may change over even a short period of
time," Casteel, 717 F.3d at 641, parties may move for a competency determination at
any stage of the prosecution. And, a district court "'shall order' a competency hearing
upon its own motion if 'there is reasonable cause to believe' a defendant is not
competent and . . . 'may order' a psychological evaluation prior to such a hearing."
United States v. Washington, 596 F.3d 926, 940 (8th Cir. 2010) (quoting 18 U.S.C.
§ 4241 (a)-(b)). We review the district court's denial of a motion for a competency
hearing and examination for abuse of discretion. Id.; United States v. Crawford, 487
F.3d 1101, 1105 (8th Cir. 2007).

       Here, we find no abuse of the district court's discretion because we agree with
the district court there was no "reasonable cause" to believe Dahl was incompetent.
The medical reports indicated physical injury including a brain injury that resulted in
"mild cognitive impairment." It is undisputed Dahl suffered memory lapses, but the
medical reports provided no indication Dahl was incapable of understanding the
nature or consequences of the legal proceedings. Importantly, Dahl's extensive
participation at his hearings showed he understood the nature and consequences of
the proceedings.




                                         -7-
       After the government made clear that it did not intend to move for a substantial
assistance departure, Dahl provided two pro-se letters to the court showing a
reasonable understanding of the consequences of the proceedings against him. Dahl
was a fifty-one-year-old man who was facing a possible life sentence and, without a
substantial assistance motion from the government, a mandatory minimum sentence
of seventeen years' imprisonment (which, given his circumstances, he not
unreasonably characterized as a life sentence in practical effect). Dahl emphasized
his sense of urgency to the court and demonstrated not only an understanding of his
potential sentence, but also of the role a competency determination would play in his
case. He complained generally about an absence of communication from his attorney
and specifically about his attorney's failure to secure a psychological or psychiatric
examination.

       At the sentencing hearing itself, Dahl again demonstrated his ability to
understand the nature and consequences of the proceedings. Dahl had entered into
his plea agreement hoping to receive a substantial assistance motion from the
government that would allow the court to sentence him below the otherwise
applicable seventeen-year mandatory minimum sentence. Dahl recalled with detail
events surrounding the incident during which he abused the detained conspirator and
pointed a gun at the man while tied to a chair. Dahl believed it unjust that other
conspirators received lesser sentences and believed they had lied to the court in order
to obtain such sentences. Dahl's outbursts in the courtroom displayed anger and a
lack of decorum; they were ill-advised but not irrational. Rather, Dahl's anger at not
receiving the substantial assistance motion reflected a rational understanding of the
nature of the sentencing regime, the consequences of the proceedings, and the role of
a government motion.

     And finally, counsel's representations and arguments assert merely that Dahl's
mental condition had deteriorated between the plea hearing and sentencing hearing.
Counsel did not represent that the nature of Dahl's "mild cognitive impairment" had

                                         -8-
changed or that Dahl had become unable to understand the proceedings and assist
counsel. Simply put, not every mental impairment relates to competency, and the
record shows that, despite memory difficulties, Dahl understood the proceedings.
United States v. Knohl, 379 F.2d 427, 436 (2d Cir. 1967) ("Where the defendant
complains of nothing more than memory difficulties, there is inadequate ground for
holding an accused incompetent to stand trial."). We believe the district court
properly concluded that Dahl was competent for sentencing and that he was
unsatisfied with the outcome.

III. Conclusion

      Because the district court did not abuse its discretion in denying a competency
hearing and examination, we affirm the judgment of the district court.
                      ______________________________




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