                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA ,                 No. 10-50631
           Plaintiff-Appellee,
                                          D.C. No.
              v.                    5:08-cr-00041-VAP-1

JOEL STANLEY DREYER,                   ORDER AND
         Defendant-Appellant.           OPINION


     Appeal from the United States District Court
         for the Central District of California
     Virginia A. Phillips, District Judge, Presiding

                Argued and Submitted
        February 8, 2012—Pasadena, California

                   Filed January 7, 2013

  Before: Stephen Reinhardt, Kim McLane Wardlaw,
      and Consuelo M. Callahan, Circuit Judges.

                        Order;
          Dissent to Order by Judge Tallman;
             Opinion by Judge Reinhardt;
              Dissent by Judge Callahan
2                  UNITED STATES V . DREYER

                           SUMMARY*


                           Criminal Law

    The panel issued an order (1) withdrawing an opinion and
dissent filed October 12, 2012; (2) filing a superseding
opinion and dissent; (3) stating that a vote on a judge’s sua
sponte request to rehear the matter en banc failed to receive
a majority of the votes of the nonrecused active judges in
favor of en banc reconsideration; and (4) directing the clerk
to issue the mandate forthwith.

    In the superseding opinion, the panel vacated a sentence
and remanded for the district court to evaluate the defendant’s
competency on the basis of an evidentiary hearing. The panel
held that the record before the district court at sentencing was
sufficient to cause a genuine doubt as to the defendant’s
competency and that the district court committed plain error
by failing to order a hearing sua sponte.

    In the superseding dissent, Judge Callahan wrote that she
could not agree that it was plain error for the district court not
to sua sponte order a competency hearing after the defendant
pleaded guilty and received the benefit of his plea agreement
but before sentencing.

    Dissenting from the denial of rehearing en banc, Judge
Tallman (joined by Chief Judge Kozinski and Judges
O’Scannlain, Bybee, Callahan, Bea, Ikuta, and N.R. Smith)


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V . DREYER                    3

wrote that by failing to take the case en banc, this court has
made a hash of the plain error standard, and that the
majority’s decision will wreak havoc on sentencing
proceedings.


                        COUNSEL

Pamela O’Leary Tower (argued), Kenwood, California; Roger
J. Rosen, Los Angeles, California, for Appellant.

Antoine F. Raphael (argued), Assistant United States
Attorney; Andre Birotte Jr., United States Attorney,
Riverside, California for Appellee.


                          ORDER

   The opinion and dissent filed August 21, 2012 are
withdrawn. A superseding opinion and dissent was circulated
to the Court on October 12, 2012 and is being filed
concurrently with this order.

    After the superseding opinion and dissent was circulated,
a judge sua sponte requested a vote on whether to rehear the
matter en banc. Although no petition for rehearing or petition
for rehearing en banc was filed, the parties were given notice
of the superseding opinion and dissent and permitted the
opportunity to state their positions on whether the matter
should be reheard en banc. The matter failed to receive a
majority of the votes of the nonrecused active judges in favor
of en banc reconsideration. FED . R. APP . P. 35.
4               UNITED STATES V . DREYER

    No future petition for rehearing or petition for rehearing
en banc will be entertained. The clerk is directed to issue
the mandate forthwith.

   Judge Callahan would have the mandate issue after seven
days as generally provided by Federal Rule of Appellate
Procedure 41(b).



TALLMAN, Circuit Judge, joined by KOZINSKI, Chief
Judge, and O’SCANNLAIN, BYBEE, CALLAHAN, BEA,
IKUTA, and N.R. SMITH, Circuit Judges, dissenting from
the denial of rehearing en banc:

    By failing to take this case en banc we have made a hash
of the plain error standard. Under the guise of a plain error
review, the majority has conducted a de novo analysis,
concluding that the district court plainly erred by not sua
sponte ordering a competency hearing prior to sentencing.
The majority’s decision is not only irreconcilable with our
prior precedents, it also will wreak havoc on sentencing
proceedings. In the wake of this decision, district judges may
feel compelled to order a competency hearing any time a
defendant suffers from a medical condition and, as a result,
cannot “expres[s] himself appropriately or in a manner that
could assist in his defense.” United States v. Dreyer,
693 F.3d 803, 813 (9th Cir. 2012).

    Federal courts nationwide pronounced 86,000 sentences
in 2011; 21,000 of these sentences were pronounced in the
Ninth Circuit alone. United States Sentencing Commission,
Statistical Information Packet 3 tbl. 2 (2011). Defendants
                 UNITED STATES V . DREYER                      5

with medical and psychological deficiencies that prevent or
impair their ability to allocute are not infrequently sentenced,
and district courts, quite properly, do not routinely conclude
that such impairments rise to the level of legal incompetence.
The Dreyer opinion affords no deference to district courts,
which are uniquely qualified to evaluate competency at
sentencing, and will only result in unnecessary and expensive
evaluations, hearings, resentencings, and remands when
evidence of legal incompetence is limited or absent.

    To justify its conclusion, the majority relies on a distorted
interpretation of the facts and a tortured construction of
existing precedent. The majority finds plain error even
though three doctors opined that Dreyer was competent to
plead guilty, and even though no evidence suggested that
Dreyer’s mental condition had deteriorated after he was last
found competent, and even though neither party suggested a
need for a competency evaluation prior to sentencing, and
even though Dreyer’s behavior in court did not suggest the
need for further evaluation. In vacating Dreyer’s sentence,
the majority has improperly substituted its judgment for that
of the district court, resulting in an opinion that will
undermine the finality of any number of properly imposed
sentences.

                               I

    The record does not support the majority’s ruling that the
district court’s failure to sua sponte conduct a competency
hearing constituted plain error. The district court’s omission
would only be error if, in light of the information contained in
the record, a reasonable judge would have experienced
genuine doubt regarding the defendant’s competence. United
6                UNITED STATES V . DREYER

States v. Marks, 530 F.3d 799, 814 (9th Cir. 2008). In
determining whether such doubt exists, we must consider the
following factors: “the defendant’s irrational behavior, his
demeanor in court, and any prior medical opinions on his
competence.” Id. (internal quotation marks omitted). None
of these factors support the majority’s conclusion that there
was “substantial evidence” sufficient to raise a genuine doubt
that Dreyer was incompetent to be sentenced. Id. (internal
quotation marks omitted).

    Three reports compiled by four medical experts each
concluded that Dreyer suffered from early stage
frontotemporal dementia. None opined that Dreyer’s medical
condition rendered him legally incompetent. Instead, the
doctors expressly found that Dreyer’s dementia did not
“cause[] him to be unaware of the nature and consequences of
his behavior, or that what he was doing was wrong,” that
Dreyer’s “cognitive skills were intact,” and that Dreyer was
“competent to plead guilty.” Dreyer, 693 F.3d at 816
(Callahan, J., dissenting) (internal quotation marks omitted).

    Furthermore, as Dreyer concedes, he “did not manifest
any observable signs of incompetency during the sentencing
hearing.” Id. at 817. He responded to the district court’s
inquiries in a coherent and respectful manner, and appeared
to interact with his attorneys thoughtfully and to respond
appropriately to evidence introduced against him. Although
Dreyer declined to participate in allocution, this decision does
not necessarily evidence incompetence, but rather is merely
one factor that must be evaluated when considering whether
Dreyer could “understand the nature and consequences of the
proceedings against him [and] to assist properly in his
defense.” 18 U.S.C. § 4241(a).
                 UNITED STATES V . DREYER                    7

    The district court was fully aware that Dreyer suffered
from a medical disorder that at times impaired his inhibition
and insight. The district judge reviewed the expert reports
evaluating Dreyer’s mental health, considered Dreyer’s
medical condition in calculating an appropriate sentence, and
personally observed Dreyer’s behavior in court. In finding
plain error, the majority disregarded the district court’s
assessment of a fact-intensive competency inquiry, which is
necessarily informed by the judge’s personal perception of
Dreyer’s behavior at sentencing. On this record, the alleged
failure to order a competency evaluation was not an “error
that is so clear-cut, so obvious” that no competent district
judge would have imposed sentence in its absence. United
States v. Turman, 122 F.3d 1167, 1170 (9th Cir. 1997). As a
result, the majority’s conclusion that the district court
committed plain error is not defensible.

                              II

    The majority’s conclusion is a significant expansion of
existing precedent, under which we have found plain error
only when the quality and magnitude of mental health
evidence far exceeded what has been presented in this case.
The evidence of Dreyer’s mental deficiencies does not begin
to approximate the record of delusional psychosis and brain
damage suffered by the defendants in United States v.
Duncan, 643 F.3d 1242 (9th Cir. 2011), and Odle v.
Woodford, 238 F.3d 1084 (9th Cir. 2001).

    In Duncan, we held that the district court erred in failing
to order a competency hearing before imposing sentence. In
that case, three experts concluded that the defendant suffered
from delusions and was incompetent to represent himself,
8                UNITED STATES V . DREYER

MRI and PET scans showed “an unusual brain structure
consistent with behavioral deficits in the ability to make
rational plans and modulate emotions,” and defense counsel
expressed genuine concern regarding the defendant’s
competency. Duncan, 643 F.3d at 1249 (internal quotation
marks omitted).

    In Odle, we found error after noting that the defendant
suffered severe trauma requiring the removal of a grapefruit-
sized portion of his brain, attempted suicide, and was
committed to psychiatric wards three times in as many years.
Odle, 238 F.3d at 1088–89. Medical reports and expert
evaluations evidenced that the defendant had an “organic
brain disorder,” experienced hallucinations, “seemed
confused,” and “beat his head against the wall.” Id. Given
the defendant’s lengthy medical history demonstrating severe
mental impairments, we found that: “Where a petitioner has
suffered massive trauma to his brain and subsequently
exhibits psychotic behavior, some of it while awaiting trial, an
inquiry into whether he possesses the mental acuity to
participate in the proceedings is the reasonable and
appropriate course of action.” Id. at 1089.

    None of the expert reports evaluating Dreyer’s mental
state identify any symptoms, diagnoses, or conditions that rise
to the level of mental impairment evidenced in Duncan or
Odle. Instead, the experts’ conclusions support a finding that
Dreyer was competent to be sentenced. Defense counsel’s
statements at sentencing do not alter this analysis. Counsel
informed the court that Dreyer would not allocute due to his
frontotemporal dementia, which might cause him to “speak
inappropriately,” “make denials,” or “not accept
responsibility.” Dreyer, 693 F.3d at 807 (majority opinion).
                UNITED STATES V . DREYER                    9

These statements were fully consistent with the district
court’s prior understanding of Dreyer’s impaired verbal,
behavioral, and impulse control, and should not have created
any further doubt as to Dreyer’s competency to be sentenced.
Absent further medical evidence of impaired comprehension,
it was inappropriate under plain error review for the panel
majority to declare that a reasonable jurist would have a
genuine doubt as to Dreyer’s competency.

                             III

    The majority’s conclusion cannot be reconciled with our
prior cases in which we held that plain error was not
established. As the dissent accurately notes, when a
“defendant has a medical or mental health condition that may
affect the brain but does not interfere with the defendant’s
ability to rationally consult with his attorney and understand
the proceedings, this Court has not found sufficient evidence
of incompetenc[y]” to support a finding of plain error. Id. at
820 (Callahan, J., dissenting) (emphasis added).

    For example, in United States v. White, 670 F.3d 1077,
1084–85 (9th Cir. 2012), we found that “a reasonable judge
[would not have] a bona fide doubt” as to the defendant’s
competency, even though the defendant exhibited outbursts in
court and his attorneys indicated that he may suffer from
delusions. In United States v. Mendez-Sanchez, 563 F.3d 935,
940–41, 948 (9th Cir. 2009), we concluded that the district
court did not plainly err in failing to sua sponte order a
competency hearing, despite evidence that the defendant
behaved irrationally and experienced difficulties
communicating with his counsel.
10               UNITED STATES V . DREYER

    The majority attempts to distinguish these cases,
concluding that neither involved a defendant with a
“diagnos[ed] . . . medical disorder bearing on the defendant’s
mental state.” Dreyer, 693 F.3d at 812 (majority opinion).
However, this distinction misses the point. The sole inquiry
must be whether the defendant was incapable of
comprehending the proceedings or rationally communicating
with counsel. See 18 U.S.C. § 4241(a). The impact of a
medical condition on a defendant’s mental state is irrelevant
unless the identified deficiencies interfere with the
defendant’s ability to consult with his attorney or understand
the proceedings.

                              IV

    The majority assigns improper weight to the fact that
Dreyer chose not to allocute. In doing so, the majority adds
to the existing standard of legal competence by requiring that
the defendant be able to speak persuasively on his own behalf
at sentencing. See United States v. Fernandez, 388 F.3d
1199, 1251 (9th Cir. 2004). According to the majority
opinion, “[c]ompetenc[y] at sentencing therefore requires . . .
that the defendant be able to . . . participat[e] in his
‘elementary right’ of allocution.” Dreyer, 693 F.3d at 809.
We have never held that a defendant’s election not to allocute,
even if compelled by a medical or physical condition, is alone
sufficient to require a competency hearing. Unable to rely on
prior precedent, the majority manufactures a new competency
standard out of whole cloth.

    The majority’s opinion suggests that a district court must
sua sponte conduct a competency hearing anytime a defendant
declines to speak at sentencing because of a “diagnose[d] . . .
                 UNITED STATES V . DREYER                    11

medical disorder affecting the defendant’s mental condition.”
Dreyer, 693 F.3d at 812. This quoted language necessarily
encompasses a wide range of potential psychological and
mental impairments. Nothing in the majority’s opinion limits
its impact to defendants who have organic causes for their
mental impairment or degenerative diseases that have a clear
effect on the structure of their brain. Without further
guidance, a district court may rationally conclude that it must
sua sponte order a hearing when any number of impairments
are identified. This result imposes a substantial burden on
district courts and will only unnecessarily complicate
sentencing proceedings.

                               V

    The district court did not commit plain error, defined as
an “error that is so clear-cut, so obvious,” that no “competent
district judge” would make such a mistake, even “without the
benefit of objection.” Turman, 122 F.3d at 1170. The
majority’s decision cannot be reconciled with our prior
precedents, under which we have found plain error only when
the quality and magnitude of mental health evidence far
exceeded what has been presented in this case. In their place,
the majority has crafted an opinion that alters the existing
standard for legal competence, fails to accord adequate
respect for district courts charged with conducting sentencing
proceedings, and undermines the finality of properly imposed
criminal sentences. In light of the substantial medical
evidence already available to the district court, there was no
error seriously affecting the fairness, integrity, or reputation
of the sentencing proceedings.
12               UNITED STATES V . DREYER

    District courts now face the real risk of reversal for
declining to act when neither party suggests there is a
competency concern but the defendant elects not to allocute
for medical reasons. Applying the majority’s opinion,
reversal will be required even though the defendant’s
condition does not impact the defendant’s ability to
understand the sentencing proceedings or to rationally
communicate with counsel. In attempting to comply with this
misguided decision, district courts are left to navigate the
shoals of Scylla and Charybdis. The Court should have voted
to rehear this case en banc to remove this hazard to
navigation.



                          OPINION

REINHARDT, Circuit Judge:

    At the age of 63, Joel Dreyer experienced the onset of
frontotemporal dementia, a degenerative brain disorder that
causes changes in personality and behavior, impairs social
interactions, and causes disinhibition and a loss of insight and
impulse control. He was a practicing psychiatrist at the time.
From the age of 66 to 69, despite having no criminal history,
Dreyer participated in a conspiracy to distribute controlled
substances, and in December 2010, at the age of 73, he was
sentenced to ten years imprisonment after he pleaded guilty to
charges related to that conspiracy.

    At the sentencing hearing, the district court was provided
with three expert reports: all three diagnosed Dreyer with
frontotemporal dementia and noted that he exhibited textbook
                 UNITED STATES V . DREYER                     13

manifestations of the condition since its apparent onset in
2001, three years before his participation in the controlled
substance conspiracy, and that his symptoms persisted into
the present. Dreyer did not allocute at sentencing and defense
counsel informed the court that his client would not address
it due to the dementia’s effect on his behavior. Defense
counsel did not move for a competency hearing and the
district court did not order a hearing sua sponte. The court
sentenced Dreyer to 120 months. Dreyer appeals his
sentence, contending that the district court erred by failing sua
sponte to order an evidentiary hearing to determine his
competency at the time of sentencing.

    We hold that the record before the district court at
sentencing was sufficient to cause a genuine doubt as to the
defendant’s competence and that the court committed plain
error by failing to order a hearing sua sponte. Accordingly,
we vacate Dreyer’s sentence and remand for the district court
to evaluate Dreyer’s competency on the basis of an
evidentiary hearing.

                      BACKGROUND

    Dreyer experienced a medical emergency in 2001 that
coincided with the onset of frontotemporal dementia.
Immediately after being released from the hospital, Dreyer’s
family noticed significant changes in his personality and
behavior. Within a few years Dreyer ended his previously-
happy marriage to his wife of 17 years, engaged in
uncharacteristic behavior and withdrew from his family to
such a degree that friends and relatives concluded that he was
14                  UNITED STATES V . DREYER

exhibiting early signs of dementia.1 Despite the family’s
concerns, his illness remained undiagnosed. In 2004, the 66-
year-old Dreyer, a licensed psychiatrist, began providing
prescriptions of oxycodone and hydrocodone to patients
outside of the usual course of professional practice. In 2007
Dreyer was indicted on charges related to his participation in
a conspiracy to possess and to distribute controlled
substances. Although Dreyer had difficulty recognizing or
admitting that his actions were inconsistent with professional
standards of conduct, he nonetheless pleaded guilty in
September 2009 to two counts of the thirty count indictment.

    Prior to sentencing, Dreyer submitted three different
expert reports to the court, all of which diagnosed him as
suffering from frontotemporal dementia.2 Two of the reports
were obtained from experts hired by the defense, while the
third expert was selected by the government but jointly
commissioned by both parties. All three reports were


 1
   Dreyer’s family recounted a number of instances in which he behaved
in ways that starkly contrasted with his pre-onset behavior. Among them
was an instance when Dreyer appeared wearing dress slacks and nude
from the waist up in the lobby of an expensive hotel to meet with his
daughter and a family friend. His daughter also described Dreyer as
behaving “detached and aloof” at her younger son’s bar mitzvah, going so
far as to read a newspaper in the temple while his grandson gave his
speech. This was a marked contrast from her first son’s bar mitzvah, at
which the defendant “was engaged, singing [and] shedding tears of joy.”

 2
   At Dreyer’s change of plea hearing, he informed the court that a doctor
had identified frontal lobe damage in his brain. At the time, Dreyer’s
counsel made no comments regarding the effect of this condition on
Dreyer’s ability to assist in his defense and the court did not have the
benefit of any of these expert reports; all three reports were completed
after Dreyer entered his guilty plea.
                 UNITED STATES V . DREYER                    15

consistent in their diagnoses and descriptions of Dreyer’s
symptoms. The joint report authored by the expert
recommended by the prosecution, Dr. Martell, noted that
Dreyer exhibited “behavioral disinhibition, frontal lobe
cognitive dysfunction, memory impairment, loss of smell
(anosmia), impaired word-finding ability (dysnomia),
hypersexuality, loss of tact and social propriety, and lack of
insight into his own impairments (anosagnosia).” The Martell
report noted that Dreyer’s affect was normal and that he
retained the ability to articulate, but that he suffered from
“moderately severe impairment” in three areas of brain
functioning: executive control, language, and memory. The
report also stated that this condition affected his behavior and
ability to communicate, as well as his ability to regulate his
speech appropriately or to have insight into his own behavior.

     Doctors Amen and Krause authored one of the two reports
commissioned by the defense (“the Amen/Krause report”).
Their report included brain imaging results showing
“extensive frontal lobe damage” causing “his judgment [to]
be severely impaired and his insight also impaired.” The
results of their neuropsychological testing similarly “revealed
deficits that are consistent with Frontotemporal Dementia,”
which “affects the part of the brain that regulates
comportment, insight and reasoning.” Dr. Rudnick, the
author of the final report, also concluded that Dreyer suffered
from “impaired judgment, disinhibition and impulsivity that
. . . rendered him vulnerable to acting rashly and without
consideration of the consequences.” He stated that Dreyer’s
history reflected a “textbook description of [frontotemporal
dementia],” which “present[s] in the early phases with
behavioral and personality changes, with cognitive deficits
appearing later.” Rudnick reported that Dreyer’s “verbal
16               UNITED STATES V . DREYER

output was laced with inappropriate sexual references,
profanity and facetiousness [and] [h]e exhibited impulsivity
in his responses, disinhibition and expansiveness to the point
of grandiosity.” Despite Dreyer’s propensity for falsehoods
and exaggerations, the doctor stated that “any distortions are
the result of his faulty judgment, insight and recall rather than
intentional misrepresentation.” Rudnick concluded by noting
the degenerative nature of the disease. He observed that
frontotemporal dementia is both “irreversible and
progressive,” and that Dreyer’s “long-term prognosis is quite
dismal,” with an average life span of 3.4 years from the time
of diagnosis and a diminishing ability to live independently in
the interim.

    The evaluations of the four experts consulted were
substantially similar, and the reports explicitly disagreed only
in their conclusions about Dreyer’s competency. Martell’s
report specifically opined as to whether Dreyer was
incompetent when he entered his guilty plea. Martell
concluded that he was competent at the time of his plea and
had taken “full responsibility for having engaged in improper
prescribing practices.” When he considered Dreyer’s mental
state at the time of the offense, however, he acknowledged
that Dreyer “engaged in the behaviors for which he has plead
guilty while suffering from Dementia and an organic
personality disorder that rendered him disinhibited, and
impaired his judgment,” and that this fact “may mitigate or
reduce his culpability . . . as his moral compass was
effectively compromised by brain damage over which he had
impaired control.” The Amen/Krause report came to a
contrary conclusion as to Dreyer’s competency: it concluded
that the dementia “caused him to engage in activities that he
may not have clearly understood such as in the plea
                 UNITED STATES V . DREYER                     17

agreement.” Rudnick’s report did not offer any explicit
conclusions as to Dreyer’s competency, but stated, consistent
with the other reports, that “his dementia prevented him from
accurately critiquing or monitoring his own behavior and
from foreseeing its consequences,” and that throughout the
time that he engaged in the activities for which he was being
prosecuted, Dreyer “was truly convinced that his actions did
not constitute professional violations.”

    All three expert reports were submitted to the court prior
to Dreyer’s sentencing hearing in December 2010. The
presentence report recommended a sentence between 188 and
235 months, and the government requested a sentence of 121
months. Dreyer’s attorney argued for a sentence of probation
due to Dreyer’s deteriorating health and the fact that his
unlawful conduct was precipitated by the onset of a disease
that substantially impaired his ability to make decisions and
differentiate right from wrong. Explaining the effect of
frontotemporal dementia, counsel stated that “[t]his disease
takes people, and it doesn’t rob them of their intellect, it robs
them of their moral compass.” He equated the proposed 121-
month sentence to a death sentence for the then-73-year-old
Dreyer, due to the progression of the disease and unfavorable
prognosis.

    Dreyer did not speak on his own behalf at sentencing. His
attorney explained his decision to direct Dreyer not to speak
as follows:

        My client isn’t going to speak today because
        one of the characteristics of the disease is that
        I don’t know what he’s going to say. He
        could speak inappropriately. He could make
18               UNITED STATES V . DREYER

       denials. He could accept responsibility, then
       not accept responsibility. That’s also a
       characteristic of this disease.

Counsel went on to ask for mercy on Dreyer’s behalf, asking
the court to “understand that Dr. Dreyer is partially with us,
partially not with us, and that’s why he’s not speaking. I can’t
even imagine what he would say to you, Your Honor, and I
can’t even imagine what his perception of the truth is in 50
percent of the cases.” After defense counsel presented his
argument on behalf of Dreyer, the district court fulfilled its
obligation to personally address the defendant. In response,
Dreyer stated that he respected the judge and appreciated her
comments.

    The court sentenced Dreyer to 120 months and made a
recommendation to the Bureau of Prisons that Dreyer be
housed at the federal medical center in Rochester, Minnesota.
Dreyer appeals his sentence contending that the district court
erred by failing sua sponte to order an evidentiary hearing to
determine whether he was competent at the time of
sentencing.

                       DISCUSSION

                               I.

    The district court has a statutory duty to “order . . .a
[competency] hearing 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
                  UNITED STATES V . DREYER                      19

against him or to assist properly in his defense.” 18 U.S.C.
§ 4241(a). “On review, [the] inquiry is not whether the trial
court could have found the defendant either competent or
incompetent, nor whether [the reviewing court] would find
the defendant incompetent . . . . Rather, the record is reviewed
to see if the evidence of incompetence was such that a
reasonable judge would be expected to experience a genuine
doubt respecting the defendant’s competence.” United States
v. Marks, 530 F.3d 799, 814 (9th Cir. 2008) (alterations in
original) (internal citations and quotation marks omitted).
Here, the district court committed error by failing to order a
competency hearing sua sponte despite a record that raises a
genuine doubt that the defendant was incapable of assisting
properly at the sentencing proceeding.

    Alleged errors that are unobjected to in the district court
are generally subject to plain error review. United States v.
Olano, 507 U.S. 725, 731–32 (1993). We have explicitly
applied the plain error standard in our review of the district
court’s failure sua sponte to order a competency hearing.
Marks, 530 F.3d at 814; United States v. Fernandez, 388 F.3d
1199, 1250–51 (9th Cir. 2004). But see United States v.
Mitchell, 502 F.3d 931, 986–97 (9th Cir. 2007) (not
subjecting the trial court’s failure sua sponte to conduct a
competency hearing to plain error review). “Relief for plain
error is available if there has been (1) error; (2) that was plain;
(3) that affected substantial rights; and (4) that seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings.” United States v. Cannel, 517 F.3d
1172, 1176 (9th Cir. 2008). As a practical matter, a district
court’s failure to conduct a competency hearing on its own
motion will always be subject to plain error review. This is
because a defense counsel who is attuned to his client’s
20               UNITED STATES V . DREYER

mental condition and recognizes that the defendant’s
competency is in question would not leave it up to the district
court to order a competency hearing sua sponte, rather, he
would move for such a hearing himself. If his motion was
denied we would then evaluate the district court’s denial of
the motion rather than its failure to order a hearing sua
sponte. See, e.g., United States v. Duncan, 643 F.3d 1242 (9th
Cir. 2011). Therefore, the question currently before us,
whether the district court’s failure to order a competency
hearing sua sponte, will always be raised for the first time on
appeal.

     If we find that “evidence of incompetence was such that
a reasonable judge would be expected to experience a genuine
doubt respecting the defendant’s competence,” Chavez v.
United States, 656 F.2d 512, 516 (9th Cir. 1981), then the first
two prongs of the Olano test are satisfied, leaving the
questions of substantial rights and fairness. One of the
foundational principles of our judicial system is the belief that
an individual should neither be allowed to stand trial nor have
his sentence carried out if he is incompetent. See, e.g.,
Riggins v. Nevada, 504 U.S. 127, 139–140 (1992) (Kennedy,
J., concurring in the judgment) (“Competence to stand trial is
rudimentary, for upon it depends the main part of those rights
deemed essential to a fair trial.”) (citing Drope v. Missouri,
420 U.S. 162, 171-172 (1975)). Allowing a judicial
proceeding to continue when there is genuine doubt as to the
competence of the accused plainly implicates the substantial
rights of the accused and seriously affects the fairness,
integrity and public reputation of the judicial proceedings.
Thus, while we must subject Dreyer’s claim to plain error
review, the analysis is ultimately reducible to the question of
whether “the evidence of incompetence was such that a
                 UNITED STATES V . DREYER                   21

reasonable judge would be expected to experience a genuine
doubt respecting the defendant’s competence.” Chavez,
656 F.2d at 516. Where the answer is yes, the failure to order
a competency hearing sua sponte is plain error.

                              II.

    Here, we must determine whether the district court had
before it sufficient evidence to create a bona fide doubt as to
Dreyer’s competency. “Competence is defined as the ability
to understand the proceedings and to assist counsel in
preparing a defense.” Miles v. Stainer, 108 F.3d, 1109, 1112
(9th Cir. 1997) (citing Dusky v. United States, 362 U.S. 402
(1960) (per curiam)). “[T]he competency right does not end
at a conviction,” but rather persists through sentencing.
Duncan, 643 F.3d at 1248; U.S. v. Ahrendt, 560 F.3d 69, 74
(1st Cir. 2009) (“The obligation to determine competency to
stand trial is continuing, and persists throughout a proceeding
including through the sentencing phase.”); see also 18 U.S.C.
4241(a) (noting that the inquiry into a defendant’s
competence may take place “any time after the
commencement of a prosecution . . . and prior to the
sentencing of the defendant.”). The record raises a question
as to the defendant’s competence if there is substantial
evidence that, due to a mental disease or defect, the defendant
is either “unable to understand the nature and consequences
of the proceedings against him or to assist properly in his
defense.” United States v. Friedman, 366 F.3d 975, 980 (9th
Cir. 2004) (emphasis in original) (quoting 18 U.S.C.
§ 4241(d)) (holding that the district court properly found the
defendant incompetent where he was able to understand the
proceedings but not capable of assisting properly in his
defense). Although the level of competency mandated by due
22               UNITED STATES V . DREYER

process does not vary based on the specific stage of the
criminal proceeding, Godinez v. Moran, 509 U.S. 389,
400–01 (1993), the defendant’s ability to participate or assist
his counsel must be evaluated in light of the type of
participation required.

     “Sentencing is a critical stage of the criminal process,”
Boardman v. Estelle, 957 F.2d 1523, 1525 (9th Cir. 1992)
(citing Mempha v. Rhay, 389 U.S. 128, 134 (1967)), and the
defendant’s allocution, “is an essential element of a criminal
defense.” Id. at 1526. Competence at sentencing therefore
requires, among other things, that the defendant be able to
assist in his own defense by participating in his “elementary
right” of allocution. Id. at 1527 (quoting United States v.
Behrens, 375 U.S. 162, 84 (1963)). Although a defendant is
not compelled to speak on his own behalf at sentencing,
courts have long recognized the importance of affording him
such an opportunity. The creation of various procedural
protections has not “lessen[ed] the need for the defendant,
personally, to have the opportunity to present to the court his
plea in mitigation. The most persuasive counsel may not be
able to speak for a defendant as the defendant might, with
halting eloquence, speak for himself.” Green v. United
States, 365 U.S. 301, 304 (1961). At sentencing, “the test [of
competency] is whether the defendant is able to understand
the nature of the proceedings and participate intelligently to
the extent participation is called for.” Chavez, 656 F.2d at 518
(9th Cir. 1981). The ability to allocute, in short, is an
essential element of this participation.

    At sentencing Dreyer refrained from allocuting. While the
defendant has the right to make this choice, defense counsel
explained the reason underlying Dreyer’s silence: his disease
                 UNITED STATES V . DREYER                   23

prevented him from coherently speaking on his own behalf.
Counsel expressed concern that Dreyer might contradict
himself by accepting responsibility and then refusing to do so,
or would speak to the court inappropriately. He also
explicitly informed the court that Dreyer had difficulty
perceiving the truth as a result of his dementia and was only
“partially with us.” The decision not to allocute was therefore
obviously viewed by the defense as necessitated by Dreyer’s
medical condition.

    Although it is true that “defense counsel will often have
the best-informed view of the defendant’s ability to
participate in his defense,” Medina v. California, 505 U.S.
437, 450 (1992), the district court need not have relied merely
on the defense counsel’s statements to determine whether
Dreyer’s competence was in question. Counsel’s assessment
of Dreyer was supported by all three medical evaluations
presented to the court. Although the medical experts
described Dreyer as generally cooperative and articulate, they
also found his behavior to be inappropriate, his personality
emotionally-blunted, and his speech laced with sexual
references and profanity. He was prone to lies and
exaggerations due to his faulty judgment, insight and recall.
Despite Dreyer’s apparent proclivity for falsehood, the
experts observed that these statements were not made in a
deliberate attempt to misrepresent the truth. Dreyer lacked an
awareness of social norms of comportment and exhibited poor
social judgment and a penchant for engaging in provocative
and antagonistic behavior had already resulted in his receiving
a severe beating during his brief prison stay. The experts
explicitly recognized that Dreyer had a “profound lack of
social propriety,” and an inability to “filter himself
effectively.” They additionally noted that he was prone to
24               UNITED STATES V . DREYER

making inflammatory religious and racial statements that
conflicted with his long-held beliefs, and that, if incarcerated,
he would need protective custody “essentially to protect him
from himself.” As a result of his frontotemporal dementia,
Dreyer was not only incapable of making a reasoned plea for
leniency, but was unable to even refrain from making
comments that were contrary to his own beliefs and that
placed him in physical danger. The uncontradicted medical
evidence before the district court supported counsel’s
representation that Dreyer’s failure to allocute was compelled
by his ailment and his resultant inability to regulate his speech
or behavior in a manner that could assist in his defense.
Given the consistency between counsel’s statements and the
supporting expert reports, the district court had substantial
evidence before it that should have created a reasonable doubt
in its mind as to Dreyer’s ability to assist in his own defense,
and thus as to his competency.

                              III.

    The cases in which this court has concluded that there was
no basis for the trial court to doubt the defendant’s
competency, including all those cited by the government,
involve substantially less evidence to suggest incompetency
than the case before us. For instance, in United States v.
Mendez-Sanchez, 563 F.3d 935, 939–40 (9th Cir. 2009), there
was no diagnosis of any mental disorder or defect. The
defendant was uncooperative with his attorneys, but when
asked explicitly by the judge whether the defendant might be
incompetent, defense counsel reported that they did not
believe that he was. Id. at 941–42; 947–48. Instead, counsel
told the court, the defendant’s difficulties were based solely
on a refusal to accept facts which he did not like. Id. In
                 UNITED STATES V . DREYER                   25

Marks, 530 F.3d 799 (9th Cir. 2008), the defendant was rude,
asserted that the court lacked jurisdiction over him and was
uncooperative with counsel. 530 F.3d at 814–15. Again,
however, there was no medical diagnosis to suggest that the
defendant might be incompetent, and his counsel did not alert
the court to any possible difficulties. In Davis v. Woodford,
384 F.3d 628 (9th Cir. 2004), the defendant refused to wear
civilian clothes or sit at the counsel table. There was no
medical evidence indicating any kind of ailment, nor did
counsel assert that the defendant was incapable of assisting in
his defense. Id. at 645–46. On appeal the defendant alleged
only that “[t]he trial court judge was in a position to gauge
whether a competency hearing would be in order,” but this
court determined that his unusual behavior alone was
insufficient to create a genuine doubt as to his competency,
and that his actions reflected a reasoned choice. Id. at 646.

    In all of these cases, there was only comparatively minor
inappropriate courtroom behavior. There was no evidence
that the defendant would be unable to understand or
participate in the proceedings. In contrast to Dreyer’s
sentencing proceedings, there were no statements by counsel
or medical diagnoses that would have produced a genuine
doubt as to the defendant’s competency in the mind of a
reasonable judge. In fact, in these cases when medical
evidence was presented, or defense counsel made a statement
to the court regarding the defendant’s competence, the
evidence supported a finding of competency. Here, the
opposite is true. The court had a clear diagnosis of
frontotemporal dementia from multiple sources, including one
selected by the government, and all of the expert reports noted
the defendant’s inability to regulate his behavior and speech
as a result of this illness. The court also had counsel’s
26                  UNITED STATES V . DREYER

express statements that the defendant would not speak on his
own behalf as a result of his medical condition. The cases
cited by the government are therefore inapplicable.3

    When this court has considered a record containing expert
diagnoses of a medical disorder bearing on the defendant’s
mental state we have found this evidence sufficient to cause
genuine doubt as to the defendant’s competency. See, e.g.,
Deere v. Woodford, 339 F.3d 1084, 1086–87 (9th Cir. 2003);
Odle v. Woodford, 238 F.3d 1084, 1088–89 (9th Cir. 2001);
Morris v. United States, 414 F.2d 258 (9th Cir. 1969) (per
curiam). Even in the absence of expert evidence, we have
found cause to grant a motion for a competency hearing when
defense counsel reported an attempted suicide by the
defendant the night before trial. United States v. Loyola-


  3
    A case relied on heavily in the dissent, United States v. White, 670 F.3d
1077 (9th Cir. 2012), is also inapplicable and presents an entirely different
issue. In White, the issue presented was whether the district court
committed error by failing to order a second competency hearing sua
sponte after the court had previously conducting a hearing on the matter
and found the defendant to be competent to stand trial. The court in White
recognized that, where, as here, a hearing has not previously been held, the
proper standard of review “is comprehensive and not limited by either the
abuse of discretion or clearly erroneous standard,” and error occurs when
the reviewing court determines that the evidence before the trial court
“raises a bona fide doubt as to whether the defendant has become
incompetent.” White, 670 F.3d at 1082 (internal citations and quotation
marks omitted). W here, as in White, a competency hearing has already
been conducted and in that hearing the defendant has been found
competent, White holds that the standard of review is more deferential and
error can be found only if the failure to order a second hearing sua sponte
constitutes an abuse of discretion. Id. In Dreyer’s case, there was no prior
hearing as to his competency, and thus we must conduct, as White
reaffirms, a “comprehensive [review] not limited by either the abuse of
discretion or clearly erroneous standard.” Id.
                    UNITED STATES V . DREYER                          27

Dominguez, 125 F.3d 1315 (9th Cir. 1997). District courts to
which such evidence is presented are obligated to determine
only whether doubt has been created, not whether the
defendant is competent or incompetent. In such cases that
question can ordinarily be resolved only after an evidentiary
hearing.

    Although each case presents a unique set of facts, the case
that involved the most comparable record before the district
court is Duncan, 643 F.3d 1242 (9th Cir. 2011).4 In Duncan,
the record before the district judge included five competing
expert reports: two from court-appointed experts that found
“no evidence of psychotic behaviors or thought processes,” id.
at 1246, and three from defense experts that found that the
defendant suffered from “severe psychosis,” id. at 1249, and
were accompanied by a brain scan showing “unusual brain
structure consistent with behavioral deficits in the ability to
make rational plans and modulate emotions.” Id. at 1249.
The record also included letters written by the defendant,
some of which “appear[ed] rational” while the others included
statements that were “unusual.” Id. at 1250. Lastly, as
evidenced by the motion for a competency hearing, counsel in
Duncan also expressed a belief that the defendant was not
competent. Id. at 1245. On review this court concluded that
the evidence presented to the district court created a
“reasonable doubt about the Defendant’s competence, such



  4
    Although Duncan involved the district court’s decision not to hold a
formal competency hearing despite defense counsel’s motion, on appeal
the analysis is the same: “whether a reasonable judge, situated as was the
trial judge who denied the motion, should have experienced doubt with
respect to the defendant’s competence.” Duncan, 643 F.3d at 1247.
28               UNITED STATES V . DREYER

that § 4241(a) required a full competency hearing before the
district court could reach a decision.” Id. at 1250.

    The trial court here, as in Duncan, was faced with a record
that included diagnoses of a medical disorder affecting the
defendant’s mental condition and behavior. Although
Dreyer’s counsel did not move for a competency hearing, he
explicitly informed the court that his client’s disease
prevented him from participating in his defense to the extent
that further participation was called for. As in Duncan, we
must therefore conclude that the evidence on the record was
sufficient to create a reasonable doubt as to Dreyer’s
competence and thus compelled the district court to order a
competency hearing sua sponte.

    The government primarily relies on Dreyer’s calm
demeanor at sentencing to argue that the record was
insufficient to create reasonable doubt as to his competence.
Among the factors to consider when evaluating whether a
court erred in failing to order a competency hearing sua
sponte, are the “defendant’s irrational behavior, his demeanor
at trial, and any prior medical opinion on competence,”
Drope, 420 U.S. 162, 180 (1975), however, “[n]one of these
factors is determinative,” Miles, 108 F.3d 1109, 1112 (9th
Cir. 1997), and “even one of these factors standing alone may,
in some circumstances, be sufficient.” Drope, 420 U.S. at
180. While the defendant’s courtroom behavior may provide
insight into his mental condition, we have previously
observed that a “judge may be lulled into believing that [the
defendant] is competent by the fact that he does not disrupt
the proceedings, yet this passivity may itself mask an
incompetence to meaningfully participate in the process.”
Odle, 238 F.3d at 1089. Here, according to the undisputed
                 UNITED STATES V . DREYER                      29

facts in the record, counsel’s decision that Dreyer should not
allocute was “a strategy for controlling his behavior,” id. at
1089, n.6; it was necessitated by a mental ailment, and was
not proof of Dreyer’s competence. Dreyer’s condition, as
described in detail by the three expert reports, did not
manifest itself in violent outbursts, but instead prevented him
from expressing himself appropriately or in a manner that
could assist in his defense. Given the expert opinions that
supported defense counsel’s representation that Dreyer was
unable to assist in his defense due to his medical condition,
the record creates a genuine doubt as to Dreyer’s competency
even in the absence of observable courtroom antics.

                               IV.

    Given the substantial evidence of Dreyer’s lack of
competency, we hold that the district court’s failure to order
a competency hearing sua sponte constituted plain error. We
vacate Dreyer’s sentence and remand for the district court to
hold an evidentiary hearing.

    VACATED and REMANDED.



CALLAHAN, Circuit Judge, dissenting:

    I respectfully dissent. I cannot agree that it was plain error
for the district court not to sua sponte order a competency
hearing after Joel Dreyer pleaded guilty and received the
benefit of his plea agreement but before sentencing. Dreyer
was represented by competent counsel and had been
examined by a number of doctors. Although all agreed that
30               UNITED STATES V . DREYER

he suffered from frontotemporal dementia (“FTD”), none
opined that Dreyer was not competent to participate in his
sentencing. Moreover, although Dreyer chose not to allocute,
he was responsive when the district judge addressed him
personally, stating that he respected the judge and appreciated
her comments. Even if the trial judge might have issued a sua
sponte order for further psychiatric and medical evaluations,
failure to do so was not plain error.

    I do not question the majority’s genuine doubt regarding
Dreyer’s competence. However, this does not allow it to
substitute its opinion for what a reasonable judge would be
expected to experience. Cf. Chavez v. United States, 656 F.2d
512, 515–16 (9th Cir. 1981) (overruled on other grounds).
The rule reflects the fact that appellate judges viewing the
cold record are not in as good a position to evaluate a
defendant’s competence as the district court judge who has
interacted with the defendant over the course of many
hearings. The majority thus does exactly what we said we
could not do in Chavez: it disguises its own doubts about
Dreyer’s competence as what “a reasonable judge would be
expected to experience.” See id. The record does not show
that a reasonable judge would have experienced a “genuine
doubt respecting [Dreyer’s] competence.” See id.

                       I. Background

   Between May of 2004 and July of 2007, Dreyer conspired
with his co-defendant to distribute oxycodone, an addictive
Schedule II controlled substance, dispensing over 20,000 pills
over the course of approximately three years. Additionally,
Dreyer unlawfully distributed another 17,746 oxycodone pills
and 78,923 hydrocodone pills independent of his co-
                UNITED STATES V . DREYER                   31

defendant. One of Dreyer’s patients was Jessica Tia Silva,
who died of an overdose of Dreyer’s prescriptions to her.
Another patient was 17-year-old Jeremy Brink, who Dreyer
knew was a minor and without parental consent for treatment.
Nevertheless Dreyer altered the patient’s age on prescriptions
for Norco and Xanax. Dreyer prescribed these patients and
many others lethal quantities of addictive drugs without
conducting physical examinations of the patients or taking
their medical histories and received $100-$200 for each
prescription. On September 21, 2009, Dreyer pleaded guilty,
pursuant to a plea agreement, to two counts: (1) conspiracy to
possess with the intent to distribute oxycodone and to
distribute oxycodone; and (2) unlawful distribution and
dispensing of oxycodone.

    After Dreyer pleaded guilty, but before his sentencing
hearing, he underwent several medical and psychological
evaluations by four experts. Dr. Daniel G. Amen and Dr.
Christine D. Krause prepared a June 1, 2010 report (the
“Amen/Krause Report”) detailing their findings from their
evaluations of Dreyer. Dr. Amen and Dr. Krause were
retained by the defense. Dr. Amen performed a scan of
Dreyer’s brain, and Dr. Krause (a neuroclinical psychologist)
performed a forensic evaluation of Dreyer. The Amen/Krause
Report concluded that Dreyer “manifests symptoms of early
Frontotemporal Dementia which has caused him to engage in
activities that he may not have clearly understood such as in
the plea agreement. He has also exhibited poor judgment in
several incidences over the past few years that were not
typical of his behavior prior to his medical emergency.” The
Amen/Krause Report also explained that patients suffering
from FTD commonly have “executive function and reasoning
deficits.”
32              UNITED STATES V . DREYER

    On August 9–10, 2010, Dr. Daniel A. Martell (“Dr.
Martell”), a forensic psychologist, also evaluated Dreyer and
prepared a report (the “Martell Report”). The purpose of this
evaluation was to determine whether any impairment: (1)
affected Dreyer’s competence to plead guilty; (2) affected
Dreyer’s mental state during the offenses; or (3) will affect
Dreyer’s adjustment or put him at risk in prison. Dr. Martell
agreed that Dreyer had FTD, as “characterized by the cluster
of symptoms exhibited by Dreyer, including: behavioral
disinhibition, frontal lobe cognitive dysfunction, memory
impairment, loss of smell (anosmia), impaired word-finding
ability (dysnomia), hypersexuality, loss of tact and social
propriety, and lack of insight into his own impairments
(anosagnosia).” Dr. Martell opined that “[t]his is not to say,
however, that his condition caused him to be unaware of the
nature and consequences of his behavior, or that what he was
doing was wrong. Rather it may mitigate or reduce his
culpability in the eyes of the court as his moral compass was
effectively compromised by brain damage over which he had
impaired control.” Significantly, despite his conclusions
about Dreyer’s FTD, Dr. Martell also opined that Dreyer’s
guilty plea was knowing, intelligent, and voluntary. Dr.
Martell concluded that Dreyer was “indeed competent to
plead guilty.”

     On November 20, 2010, Dreyer was evaluated by Dr. F.
David Rudnick (“Dr. Rudnick”), a psychiatrist specializing in
neurobehavior. Dr. Rudnick reviewed the other two medical
reports and then conducted his own clinical tests of Dreyer.
Dr. Rudnick’s report (the “Rudnick Report”) also concluded
that Dreyer exhibited symptoms of FTD. Dr. Rudnick opined
that Dreyer’s “dementia prevented him from accurately
critiquing or monitoring his own behavior and from
                 UNITED STATES V . DREYER                    33

foreseeing its consequences. He was truly convinced that his
actions did not constitute professional violations.” However,
Dr. Rudnick also stated that, with minor exceptions, Dreyer’s
“cognitive skills were intact.”

                  II. Sentencing Hearing

    On December 13, 2010, over fourteen months after Dreyer
pleaded guilty, the district court conducted Dreyer’s
sentencing hearing. During the sentencing hearing, the
district court judge stated that she had read all of the medical
reports and the defense’s memoranda about Dreyer’s medical
condition. Dreyer did not ask for a competency hearing, but
instead requested leniency in sentencing due to his medical
condition. Nonetheless, the court explained that the evidence
did not indicate that Dreyer was incompetent to be sentenced:

       There’s a great deal of medical evidence that’s
       been submitted to the Court about the
       defendant’s medical condition, reports of
       which, not all of which is really substantiated.
       The self-reporting by the defendant is not
       always substantiated by the medical records.
       That is, the self-reported flat-lining and
       cardiac arrest . . . .

       [A]t the time of the arrest, which is, of course,
       very close in time to the conduct in question,
       the defendant spoke for hours to the agents.
       He was lucid, more than lucid, very articulate,
       cunning; and he lied to the detectives, the
       agents, over and over. He wasn’t forgetful.
       So he may well have deteriorated since that
34              UNITED STATES V . DREYER

       time, and there’s been medical evidence
       submitted to the Court about his current
       condition, but that is not necessarily a reason
       for him not to be sentenced now. And a
       reasonable sentence would include a period of
       incarceration.

The court further explained that:

       The defense relied heavily on the statements
       contained in the medical reports of Dr. Martell
       and Dr. Rudnick that he needs further
       treatment. I agree with that, and I believe he
       should be placed in [a Federal Medical
       Center], but that does not mean he should not
       receive a prison term.

    The court then sentenced Dreyer to 120 months
imprisonment—the low end of the guidelines range—and
three years of supervised release.

                 III. Standard of Review

    “On review, [the] inquiry is not whether the trial court
could have found the defendant either competent or
incompetent, nor whether [the Court of Appeals] would find
the defendant incompetent if [it] were deciding the matter de
novo. Rather, [the Court of Appeals] reviews the record to
see if the evidence of incompetence was such that a
reasonable judge would be expected to experience a genuine
doubt respecting the defendant’s competence.” See Chavez,
656 F.2d at 515–16 (overruled on other grounds). A
defendant is competent to stand trial and be sentenced if he
                 UNITED STATES V . DREYER                      35

has both a “sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding and
a rational as well as factual understanding of the proceedings
against him.” United States v. Fernandez, 388 F.3d 1199,
1251 (9th Cir. 2004). A district court’s failure to sua sponte
order a competency evaluation is only error if the evidence of
incompetence is such that a reasonable judge would have a
genuine doubt about the defendant’s ability to rationally
communicate with his attorney and understand the
proceedings. United States v. Marks, 530 F.3d 799, 814 (9th
Cir. 2008). The factors this Court considers to determine
whether there was sufficient evidence of incompetence are
“the defendant’s irrational behavior, his demeanor in court,
and any prior medical opinions on his competence.” Id.; see
also United States v. White, 670 F.3d 1077, 1082 (9th Cir.
2012) (taking into consideration the trial judge’s observation
of the defendant over the course of the proceedings).

     Importantly, “[w]here, as here, the issue is raised for the
first time on appeal, we review a district court’s decision not
to sua sponte order a competency hearing for plain error.”
See Marks, 530 F.3d at 814 (citing Fernandez, 388 F.3d at
1250–51). “Plain error is ‘(1) error, (2) that is plain, and (3)
that affect[s] substantial rights.’” Id. (alterations in original)
(quoting United States v. Thornton, 511 F.3d 1221, 1225 n.2
(9th Cir. 2008)). “If these conditions are met, an appellate
court may exercise its discretion to correct the error ‘only if
(4) the error seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.’” Thornton,
511 F.3d at 1225 n.2 (quoting Johnson v. United States,
520 U.S. 461, 467 (1997)).
36               UNITED STATES V . DREYER

                         IV. Analysis

     The district court did not err in failing to sua sponte order
that Dreyer be evaluated for competency prior to imposing the
sentence. A critical feature of this case, and one that
distinguishes it from the cases relied upon by the majority, is
that Dreyer is only claiming that he was not competent to be
sentenced. He does not allege that he was incompetent to be
tried or to plead guilty. Moreover, he admits that he “did not
manifest any observable signs of incompetency during the
sentencing hearing.” Rather, he argues for the first time on
appeal that medical reports he sought—after he entered a plea
agreement but before he was sentenced—required that the
district court sua sponte order a competency hearing, even
though he never requested a competency hearing. A fair
review of the record shows that there was no plain error and
that even if there were error, it did not “seriously affect the
fairness, integrity, or public reputation of judicial
proceedings.” Cf. Thornton, 511 F.3d at 1225 n.2.

     A. Dreyer’s Medical          Evaluations      Were      Not
        Conclusive.

    Dreyer’s medical evaluations indicate that while he
suffers from FTD and has some related mental deficiencies,
these deficiencies do not rise to the level of the legal standard
of incompetence. One of the doctors expressly concluded that
Dreyer was competent and another concluded that his
“cognitive skills were intact.” Dreyer does not attempt to
demonstrate that his FTD prevented him from rationally
conferring with his counsel or understanding the proceedings,
which is the definition of legal incompetence. He does not
explain how his diagnosis relates to this standard of
                 UNITED STATES V . DREYER                      37

incompetence, but instead makes the misleading inference
that impaired judgment and degenerative brain damage is
equivalent to legal incompetence. In doing so, he conflates
medical standards with the applicable legal standard of
incompetence. Dreyer’s medical records and behavior do not
suggest that he had difficulty rationally conferring with his
counsel and rationally understanding the proceedings.
Instead, the record shows that he interacted with his attorneys
and the court thoughtfully and even drafted a document titled
“Brain Damage” during the presentence investigation, writing
“[t]his is sad that I have a brain lesion of my frontal lobe but
it could very well be the thing that keeps me out of federal
prison.” It appears that Dreyer rationally understood the
nature of the proceedings against him and his attorney’s
strategy for seeking a reduced sentence.

    Case law indicates that it is not sufficient to point out that
a defendant has a medical ailment causing decreased brain
function. Rather, the evidence must also reasonably indicate
that the ailment prevented the defendant from rationally
interacting with his attorney and understanding the sentencing
proceedings. See Marks, 530 F.3d at 814; Fernandez,
388 F.3d at 1251. There is no such evidence of this kind of
causal relationship here. Dr. Martell expressly reported that
his findings regarding Dreyer’s FTD did not indicate that “his
condition caused him to be unaware of the nature and
consequences of his behavior, or that what he was doing was
wrong.” Dr. Martell further opined that Dreyer’s guilty plea
was knowing, intelligent, and voluntary. Another doctor, Dr.
Rudnick, reported that with minor exceptions, Dreyer still has
functional cognitive skills. The district court had before it
three medical examinations by four medical doctors, none of
which indicated that Dreyer was legally incompetent.
38               UNITED STATES V . DREYER

     B. Dreyer Did Not Exhibit Signs of Incompetence in
        Court.

    The district court, having observed Dreyer’s conduct over
the course of multiple hearings, reasonably thought he was
competent. Dreyer himself admits that he “did not manifest
any observable signs of incompetency during the sentencing
hearing.” There is nothing in the record indicating that
Dreyer exhibited signs of incompetency or unusual behavior
in court. Moreover, Dreyer’s attorney who had extensive off-
the-record interactions with Dreyer never indicated that he
was incompetent. This is significant because the district court
judge was entitled to expect that if there was a serious
question as to Dreyer’s competence, his attorney would raise
the issue. Attorneys are the primary gatekeepers and have an
affirmative duty to investigate their client’s mental state “if
there is evidence to suggest that the defendant is impaired.”
See Douglas v. Woodford, 316 F.3d 1079, 1085 (9th Cir.
2003).

    The majority makes much of the fact that Dreyer chose
not to allocute. See Maj. Op. at 22–24. Dreyer’s attorney
stated that he would not allocute because he might contradict
himself or “speak inappropriately,” and the majority suggests
that this should have signaled Dreyer’s incompetence to the
district court judge. However, the record supports other
possible explanations for Dreyer’s silence. At the sentencing
hearing, the judge noted that Dreyer had lied to the detectives
“over and over.” Accordingly, Dreyer may have declined to
speak to avoid having to explain his prior falsehoods and
avoid the risk of uttering additional falsehoods.
                 UNITED STATES V . DREYER                    39

    In any case, there is no case law indicating that a decision
not to allocute necessarily means that a defendant is
incompetent to participate in his own sentencing hearing. A
defendant may decline allocution for strategic reasons as well
as for reasons related to a disability, mental health issues, or
a host of behavioral concerns that do not rise to the level of
incompetence. Since many criminal defendants do not enjoy
perfect mental health or behave within social norms, the
majority cannot mean that every time a defendant represented
by counsel has a history of mental health and/or behavioral
issues and chooses not to allocute, a court has a sua sponte
duty to order a competency hearing. A decision not to
allocute may be a factor in evaluating whether the trial court
should have “experienced a genuine doubt respecting the
defendant’s competence,” but without clearer evidence of
incompetency in the medical records or unusual behavior in
court, it is not enough. Cf. Chavez, 656 F.2d at 515–16.

   C. The Majority Relies On Factually Distinguishable
      Cases.

    The cases cited by the majority do not support granting
relief because: (1) they concern claims of incompetence to
stand trial—not incompetence to be sentenced; (2) most
concern pro se defendants—not defendants represented by
counsel; and (3) all involved substantial histories of psychosis
and/or severe brain damage—considerably more than is
present in this case. See, e.g., Pate v. Robinson, 383 U.S.
375, 385–86 (1966) (defendant had a brick dropped on his
head, walked around in a daze, and defendant’s mother stated
that he had “lost his mind”); Torres v. Prunty, 223 F.3d 1103,
1104–06 (9th Cir. 2000) (defendant was diagnosed with a
severe delusional disorder, had extensive brain damage from
40               UNITED STATES V . DREYER

head trauma, and had uncontrollable outbursts in court); Odle
v. Woodford, 238 F.3d 1088–90 (9th Cir. 2001) (defendant
suffered from hallucinations, was committed to a psychiatric
ward at least four times, and had a temporal lobectomy
removing a 3x3x4 inch piece of his brain).

    In asserting that his medical evaluations evidence his
incompetence, Dreyer relies extensively on Odle. The facts
in Odle were very different. Odle claimed he was
incompetent to stand trial because: (1) he had a lengthy
medical history demonstrating severe mental health issues; (2)
there was witness testimony indicating severe mental
impairment, hallucinations, and multiple commitments to a
psychiatric ward; and (3) he was “missing a piece of his brain
the size of a grapefruit.” Id. at 1088–90. Consequently, we
held that there was substantial evidence of incompetence and
the trial court should have ordered a competency evaluation
sua sponte. Id. The Court reasoned that “[w]here a petitioner
has suffered massive trauma to his brain and subsequently
exhibits psychotic behavior, some of it while awaiting trial, an
inquiry into whether he possesses the mental acuity to
participate in the proceedings is the reasonable and
appropriate course of action.” Id. at 1089.

    Unfortunately, Dreyer does have brain damage, but that is
where the similarities between his case and the Odle case end.
Likewise, the other cases that Dreyer relies on are
distinguishable. In United States v. Morris, 414 F.2d 258,
258–59 (9th Cir. 1969), Morris challenged his conviction and
sentence based on evidence that he had a history of severe
mental illness and multiple documented periods of psychosis.
The medical record in Dreyer’s case does not contain the
indicia of incompetence as present in Odle and Morris. On
                UNITED STATES V . DREYER                  41

the contrary, Dr. Martell opined that Dreyer was competent to
plead guilty, and Dr. Rudnick found that Dreyer’s cognitive
skills were intact.

    Moreover, the majority’s seminal case, United States v.
Duncan, 643 F.3d 1242 (9th Cir. 2011), does not support its
opinion for several reasons. First, Duncan involved the
defendant’s competence to represent himself during the
penalty phase hearing and to waive his own right to appeal.
Duncan, 643 F.3d at 1248–49. Indeed, defense counsel had
moved for a competency hearing and the trial court denied the
motion and allowed Duncan to proceed without counsel. Id.
at 1242–48. We accordingly first held that standby counsel
could appeal (against Duncan’s wishes), and then we
determined that Duncan was not competent to waive both his
right to counsel and his right to appeal. Id. at 1244–49.
Second, in Duncan, there was considerably more evidence of
incompetence than is present in Dreyer’s case. In Duncan:

       Standby counsel produced reports from three
       experts, all well established and highly
       regarded in the field of neuropsychiatry, who
       had examined Defendant personally and had
       found him to suffer from—in the words of one
       of the experts—“delusional beliefs, paranoia,
       grandiosity, and psychotic breaks with
       reality.” All three experts formed the same
       opinion that—in the words of another of the
       experts—Defendant’s “mental diseases and
42               UNITED STATES V . DREYER

        defects render him incapable of rationally
        understanding and participating in the
        proceedings, and therefore incompetent.”

Id. at 1249.

     In contrast to the facts in Duncan, none of the doctors
who examined Dreyer intimated that he was “incapable of
rationally understanding and participating” in the sentencing
proceedings. Dr. Martell opined that Dreyer’s guilty plea was
knowing, intelligent, and voluntary. Another doctor, Dr.
Rudnick, reported that with minor exceptions, Dreyer’s
“cognitive skills were intact.” Dr. Amen and Dr. Krause
concluded that Dreyer “manifests symptoms of early
Frontotemporal Dementia [“FTD”] which has caused him to
engage in activities that he may not have clearly understood”
and that Dreyer “exhibited poor judgment in several
incidences.” However, that report did not make any express
finding regarding Dreyer’s competence as three experts did in
the Duncan case. Duncan is thus distinguishable on its facts,
its procedural posture, and its standard of review.

     D. A Finding of Plain Error is Inconsistent with Our
        Prior Cases.

    When the record indicates that the defendant has a
medical or mental health condition that may affect the brain
but does not interfere with the defendant’s ability to rationally
consult with his attorney and understand the proceedings, this
Court has not found sufficient evidence of incompetence.
See, e.g., White, 670 F.3d at 1081–85 (defendant’s angry
outbursts in court and report indicating that White may have
suffered from delusions was not substantial evidence of
                 UNITED STATES V . DREYER                    43

incompetence); Davis v. Woodford, 384 F.3d 628, 646–47
(9th Cir. 2004) (defendant’s depression and irrational conduct
during trial was not substantial evidence of incompetence);
United States v. Mendez-Sanchez, 563 F.3d 935, 939–40 (9th
Cir. 2009) (defendant’s irrational behavior and difficulties
communicating with his lawyer was not substantial evidence
of incompetence).

    Most recently in White, we found that the district court did
not err in failing to hold a sua sponte competency hearing in
a case where the defendant lashed out in the courtroom,
shouting obscenities and threats, spitting, and generally
disrupting the proceedings. White, 670 F.3d at 1081. White’s
behavior was so uncontrollable that “[d]uring the twenty-five
days of trial, White was able to remain in court without
incident on only four days. On the other days, he either had
to be removed or did not appear in the courtroom.” Id. At
some point during the trial, the court also received a report
that White may have suffered from delusions. Id. at 1084.
However, while recognizing that “[t]hese alleged delusions,
in connection with White’s repeated inappropriate behavior,
may suggest that White had some kind of mental problem—or
they may not,” we concluded that the district court had not
erred in failing to hold a sua sponte competency hearing
because “[t]he trial judge had significant evidence suggesting
that White knew that he was on trial for serious crimes and
that a potential consequence could be life imprisonment.” Id.
44                  UNITED STATES V . DREYER

    Dreyer is not entitled to any relief under White’s analysis.1
In fact, there is even less evidence of incompetence here than
in White. There were no outbursts and Dreyer was able to
acknowledge his rights and ask questions during the
sentencing hearing. Dreyer was also able to participate
respectfully and appropriately. Id. Additionally, the doctors’
reports did not undermine the district court’s
determination—based on its experience with Dreyer and his
demeanor—that Dreyer was competent to be sentenced.
Dreyer is suffering from the early stages of FTD, and while
the medical record indicates that he may have impaired
judgment and lowered inhibitions, there is no indication in
any of the three medical reports that he did not understand the
proceedings against him and could not adequately participate
in his own defense. See Fernandez, 388 F.3d at 1251.



  1
    The majority cites White for the proposition that “we must conduct, as
White reaffirms, a ‘comprehensive [review] not limited by either the abuse
of discretion or clearly erroneous standard.’” Maj. Op. at 26, n.3. Unlike
the situation in White, where W hite’s competence was repeatedly
questioned in the trial court and W hite’s multiple outbursts interrupted the
trial, here Dreyer’s competence to be sentenced is raised for the first time
on appeal. Thus, White is not contrary to our decisions providing that
where “the issue is raised for the first time on appeal, we review a district
court’s decision not to sua sponte order a competency hearing for plain
error.” See Marks, 530 F.3d at 814 (citing Fernandez, 388 F.3d at
1250–51). Moreover, that White involved a defendant who had already
had one competency hearing is a distinction without a difference since
competency is an ongoing question and should be evaluated at every stage
of the proceedings. W hat is relevant in White is its factual analysis of the
trial judge’s observations of the defendant’s behavior in the courtroom in
combination with the reports about the defendant’s mental health. White,
670 F.3d at 1081–84. Here, Dreyer’s reasonable behavior in the court was
consistent with the medical reports indicating that he was competent to be
sentenced.
                 UNITED STATES V . DREYER                      45

    E. Any Error Did Not Affect the Fairness, Integrity,
       or Public Reputation of the Judicial System.

    Even if the district court erred in proceeding to sentence
Dreyer (which it did not), under Marks, Dreyer would only be
entitled to relief if the error “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” See
Marks, 530 F.3d at 814 (quoting Thornton, 511 F.3d at 1225
n.2). Dreyer fails to demonstrate that there is any error rising
to this level. Here, Dreyer was represented by counsel, who
having obtained medical evaluations of Dreyer after he
pleaded guilty, did not alert the court that Dreyer was
incompetent to be sentenced. Cf. Douglas, 316 F.3d at 1085
(finding that attorneys have a duty to request a competency
hearing “if there is evidence to suggest that the defendant is
impaired”). Therefore, Dreyer’s attorney’s failure to do so
was a strategic choice based on his belief in his client’s
competence. Dreyer’s attorney only referenced these medical
reports to seek leniency in sentencing. In this context, the
fairness, integrity, and public reputation of the judicial
proceedings would not be blemished by the Court’s denial of
relief based on an issue raised by counsel for the first time on
appeal.

                        V. Conclusion

    Because the district court reasonably concluded that
Dreyer was competent to be sentenced, I dissent from the
majority’s opinion. First, although Dreyer’s medical
evaluations indicate that he suffers from FTD and has some
related mental deficiencies, none of the reports indicate that
these deficiencies interfered with his ability to consult with
his lawyer or to understand the proceedings against him.
46                 UNITED STATES V . DREYER

Second, although Dreyer chose not to allocute, neither the
records nor the district court’s observations of Dreyer’s
behavior in the courtroom indicate that he was incompetent to
be sentenced. Third, none of the cases cited by the majority
support granting relief to a represented defendant who
behaves normally in court and has no compelling evidence of
incompetence. Fourth, granting Dreyer relief is inconsistent
with out recent opinion in White, directing deference to the
trial judge’s judgment. Fifth, even if the district court did err,
the error does not seriously affect the fairness, integrity, or
reputation of the judicial proceedings. In sum, the majority
improperly substitutes its evaluation of Dreyer, based on a
cold and inconclusive record, for the trial judge’s
determination that was based not only on the medical record
but on Dreyer’s conduct in court. Because the district court
did not err in sentencing Dreyer without sua sponte ordering
a competency hearing, I would affirm.2




  2
    Our differing opinions as to the need to hold a competency hearing
should in no way affect the district court’s determination of Dryer’s
competency following the mandated competency hearing.
