                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                 SEP 9 2004
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

 v.                                                         No. 02-2207
                                                          (D. New Mexico)
 ANDRES SANCHEZ-GONZALEZ,                            (D.Ct. No. CR-00-1216 BB)

           Defendant- Appellant.


                                 ORDER AND JUDGMENT *


Before KELLY, McKAY, and O'BRIEN, Circuit Judges.



       Andres Sanchez-Gonzalez pled guilty to illegally re-entering the United States in

violation of 8 U.S.C. §§ 1326(a)(1), (2) and 1326(b)(2) and was sentenced to fifty-seven

months imprisonment. In spite of a plea agreement in which he waived the right to

appeal, Sanchez-Gonzalez now alleges he did not knowingly and intelligently enter into

his plea agreement because he was not competent to stand trial. He contends the district

court applied an incorrect standard in determining his competency and clearly erred in its


       *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
factual determination that he was competent to stand trial. We review pursuant to 28

U.S.C. § 1291. The district court used the correct standard in evaluating Sanchez-

Gonzalez’s competency and did not clearly err in finding him competent. Sanchez-

Gonzalez’s plea, including his waiver of the right to appeal, was knowing and voluntary.

Therefore, we dismiss the appeal.

                                    BACKGROUND

       Sanchez-Gonzalez, a Mexican national, was arrested on August 14, 2000, near

Santa Teresa, New Mexico, for illegally re-entering the United States after being

previously convicted of a prior offense. The district court appointed counsel for Sanchez-

Gonzalez. Within weeks, however, Sanchez-Gonzalez sought to remove his counsel,

citing an inability to work with him. A second attorney was appointed, but soon

thereafter withdrew, citing problematic relations with his client. The district court

appointed a third attorney for Sanchez-Gonzalez and cautioned him to cooperate with

counsel. Shortly thereafter, Sanchez-Gonzalez requested the court to remove this latest

appointment.

       At the same time, counsel alerted the district court to concerns about Sanchez-

Gonzalez’s competency, specifically his ability to properly assist in his defense. Counsel

requested a competency evaluation for Sanchez-Gonzalez. The district court agreed.

Sanchez-Gonzalez underwent a psychiatric evaluation by Dr. Abraham Fiszbein, a

forensic psychologist, who concluded he was incompetent to stand trial. After conducting


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a competency hearing, the district court granted a defense motion to commit Sanchez-

Gonzalez for treatment. See 18 U.S.C. § 4241(d).1

      In November 2001, after several months of treatment (including a regime of

medicine) at the Federal Medical Center in Minnesota, Dr. Thomas Patenaude

interviewed Sanchez-Gonzalez. In his January 2002 report, Dr. Patenaude

concluded that despite a mental defect, which was in a state of remission,



      1
          18 U.S.C. § 4241 provides in pertinent part:

      (a) Motion to determine competency of defendant. At any time after the
      commencement of a prosecution for an offense and prior to the sentencing of the
      defendant, the defendant or the attorney for the Government may file a motion for
      hearing to determine the mental competency of the defendant. The court shall
      grant the motion, or shall order such a 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 against
      him or to assist properly in his defense.

      (b) Psychiatric or psychological examination and report. Prior to the date of the
      hearing, the court may order that a psychiatric or psychological examination of the
      defendant be conducted, and that a psychiatric or psychological report be filed with
      the court, pursuant to the provisions of section 4247(b) and (c).

                                           ***

      (d) Determination and disposition. If, after hearing, the court finds by a
      preponderance of the evidence that the defendant is presently suffering from a
      mental disease or defect rendering him mentally incompetent to the extent that he
      is unable to understand the nature and consequences of the proceedings against
      him or to assist properly in his defense, the court shall commit the defendant to the
      custody of the Attorney General. The Attorney General shall hospitalize the
      defendant for treatment in a suitable facility . . . .

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Sanchez-Gonzalez remained able to understand the nature and the consequences

of the proceedings and to assist in his defense.

         On February 11, 2002, the district court convened to (1) evaluate Sanchez-

Gonzalez’s competency, and (2) accept his change of plea to guilty. Just prior to

the hearing, Sanchez-Gonzalez decided not to sign the proposed plea agreement.

Counsel informed the district court that the correctional facility where Sanchez-

Gonzalez was being incarcerated had dispensed his prescribed competency

medication. Sanchez-Gonzalez also said he was taking the prescribed medicine.

Counsel confirmed that Sanchez-Gonzalez had told him the same thing. No plea

was entered, but at the conclusion of an extended colloquy concerning sentencing

under a potential plea agreement, counsel for the Government requested the

court’s decision regarding competency. The district judge concluded Sanchez-

Gonzalez was competent saying: “based on what [the Federal Medical Center]

has said and based on what his attorney has said. And, I don’t get any impression

today that he is fighting it. So I find him competent.” (R., Supp. Vol. 5 at 6.)

Defense counsel offered no evidence, made no objection, or in any way contested

the district court’s terse competency determination, nor did he make a request to

do so.

         On February 28, 2002, the Government and Sanchez-Gonzalez entered into

a written plea agreement under which Sanchez-Gonzalez pled guilty to violating 8


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U.S.C. §§ 1326(a)(1), (2) and 1326(b)(2) and waived his statutory right to appeal.

A different district judge presided for a guilty plea and sentencing on July 15,

2002. As part of his Rule 11 colloquy, that judge personally addressed Sanchez-

Gonzalez and determined he was competent and accepted the plea and agreement.

Again, defense counsel neither objected nor offered any evidence contesting this

fresh assessment of Sanchez-Gonzalez’s competency. Pursuant to the terms of the

plea agreement, the district court adjudicated Sanchez-Gonzalez guilty and sentenced him

to fifty-seven months imprisonment.

                                      DISCUSSION

       The Government initially contends Sanchez-Gonzalez’s waiver of his right to appeal

in the plea agreement precludes this challenge. We do, however, have jurisdiction to

determine our jurisdiction. See United States v. Hahn, 359 F.3d 1315, 1324 (10th Cir. 2004).

To avoid dismissal of his appeal, Sanchez-Gonzalez must demonstrate why his waiver in the

plea agreement should not be enforced. For appeals brought by defendants who have waived

their appellate rights in a plea agreement, we confine our analysis to “(1) whether the

disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the

defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing

the waiver would result in a miscarriage of justice as defined in our precedents.” Id. at 1325

(citing United States v. Andis, 333 F.3d 886, 890-92 (8th Cir. 2003)(en banc).

       Reading Sanchez-Gonzalez’s argument, we decipher a single issue: whether he


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knowingly and voluntarily waived his appellate rights on account of his incompetency.

Specifically, Sanchez-Gonzalez contends the district court applied the incorrect

standard for determining his competency by failing to specify whether he was able to

assist in his own defense and clearly erred in determining him competent to stand

trial. Taking Sanchez-Gonzalez’s arguments in turn, we first review de novo the

competency standard employed by the district court. Lafferty v. Cook, 949 F.2d

1546, 1550 (10th Cir. 1991).

       A defendant is competent to stand trial if he “has 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.” Cooper v.

Oklahoma, 517 U.S. 348, 354 (1996) (citing Dusky v. United States, 362 U.S. 402

(1960)); see also Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).

Moreover, the Government may presume the defendant is competent and require him

to shoulder the burden of proving his incompetence by a preponderance of the

evidence. Cooper, 517 U.S. at 355 (citation and quotation omitted); see also 18

U.S.C. § 4241(d).

       Close inspection of the record reveals nothing suggesting the district court

used an incorrect standard. In fact, the entire question of competency was framed as

one in which “the whole issue is whether or not you can assist your attorney in

preparing for trial.” (R., Supp. Vol. 4 at 11.) Because the district court utilized the


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correct standard in assessing Sanchez-Gonzalez’s competency, we turn next to

whether the district court clearly erred in its factual determination that Sanchez-

Gonzalez was competent.

      Competency to stand trial is a factual determination that can be set aside only

if it is clearly erroneous. United States v. Boigegrain, 155 F.3d 1181, 1189 (10th Cir.

1998) (citation omitted). “A finding is ‘clearly erroneous’ when although there is

evidence to support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” United States v.

Mackovich, 209 F.3d 1227, 1232 (10th Cir. 2000) (quotations and citation omitted).

      After reviewing the record, we do not believe the district court’s finding of

competency was erroneous, much less clearly erroneous. The record confirms the

district court took the appropriate steps under both Dusky and § 4241 in assessing

and committing Sanchez-Gonzalez for treatment. The district court relied on both

the Federal Medical Center’s report as well as its own observations of the

defendant’s demeanor, in addition to what defense counsel reported, in making its

competency determination, which was undoubtedly within the district court’s

province. Boigegrain, 155 F.3d at 1189.

      Sanchez-Gonzalez, however, contends the district court should have conducted

a more exacting inquiry into whether he could properly assist in his own defense.

The problem with his contention is that neither he nor defense counsel did anything


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to alert the judge to a problem. Without question, “[o]f all the actors in a trial,

defense counsel has the most intimate association with the defendant.” Id. at 1188.

Thus, while not dispositive, defense counsel’s silence when a court is assessing his

client’s ability to properly assist him hardly supports a belated claim of clear error in

the competency determination. See Walker v. Gibson, 228 F.3d 1217, 1228 (10th

Cir. 2000) (“[D]efense counsel is often in the best position to determine whether a

defendant's competency is questionable.”) Context is important to our review. Nothing in

the record suggests the trial judge should have been more exacting under the circumstances

or that he clearly erred. We conclude Sanchez-Gonzalez entered into his plea agreement

knowingly and voluntarily. Therefore, he is bound by its terms, including the waiver.

      Because we affirm the district court’s determination of competency, we conclude

Sanchez-Gonzalez knowingly and voluntarily waived his right to appeal. This appeal is

DISMISSED. Sanchez-Gonzalez’s Motion to Supplement the Record is DENIED.

                                                   Entered by the Court:

                                                   Terrence L. O’Brien
                                                   United States Circuit Judge




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