     Case: 15-41515       Document: 00513817452         Page: 1     Date Filed: 12/30/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals

                                     No. 15-41515
                                                                                      Fifth Circuit

                                                                                    FILED
                                   Summary Calendar                         December 30, 2016
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                  Plaintiff-Appellee

v.

JUAN MANUEL GARCIA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:14-CR-1615-1


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Juan Manuel Garcia pleaded guilty to one count each of conspiracy to
transport illegal aliens within the United States, resulting in the death of an
alien, and of transporting illegal aliens within the United States, resulting in
the death of an alien. See 8 U.S.C. § 1324(a)(1). He was sentenced, inter alia,
to concurrent, above-Guidelines sentences of 144 and 120 months, respectively.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                   No. 15-41515

The district court ruled a within-Guidelines sentence was inadequate because
Garcia recklessly caused the deaths of two of the aliens.
      Garcia contends:       his above-Guidelines sentence resulted from an
unwarranted upward departure, as discussed infra, under Guideline § 5K2.1;
and the court erred in failing to order a competency hearing under 18 U.S.C.
§ 4241. Because he did not raise either issue in district court, review is only
for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012). Under that standard, Garcia must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
reversible plain error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
      Garcia contends the court’s upward departure under § 5K2.1 was
improper because it was based on a fact—the risk of death to the aliens caused
by his reckless driving—already reflected in the Guidelines calculation. See
§ 5K2.1, p.s. The record reveals the court applied a variance based on 18 U.S.C.
§ 3553(a)’s sentencing factors, rather than a departure under the Guidelines.
See Irizarry v. United States, 553 U.S. 708, 714 (2008). We “give due deference
to the district court’s decision that the § 3553(a) factors, on a whole, justify the
extent of the variance”. Gall v. United States, 552 U.S. 38, 51 (2007). Garcia
fails to show the court’s reasons for varying from the advisory Guidelines
sentencing range did not account for a § 3553(a) factor that should have
received significant weight, gave significant weight to an irrelevant or
improper factor, or represented a clear error of judgment in balancing the
sentencing factors. See United States v. Smith, 440 F.3d 704, 708 (5th Cir.
2006). Rather, he merely “disagrees with the sentence and the balancing of
factors conducted by the district court”, which does not demonstrate the



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                                 No. 15-41515

requisite clear or obvious error. United States v. Powell, 732 F.3d 361, 382 (5th
Cir. 2013); see Puckett, 556 U.S. at 135.
      For his other claim, Garcia contends the court erroneously denied his
motion for a competency evaluation, despite his prior diagnoses for attention
deficit hyperactivity disorder (ADHD), bipolar disorder, and panic disorder;
evidence he suffered from schizophrenia; and his counsel’s own observations of
his behavior. Citing our decision in Featherston v. Mitchell, 418 F.2d 582, 584
(5th Cir. 1969), Garcia asserts the court had no discretion to deny his motion
as long as it was non-frivolous and made in good faith.
      A court must order a competency hearing “if there is reasonable cause to
believe that the defendant may presently be suffering from a mental disease
or defect rendering him mentally incompetent to the extent that he is unable
to understand the nature and consequences of the proceedings against him or
to assist properly in his defense”. 18 U.S.C. § 4241(a). In determining whether
a competency hearing is required, we consider three factors: any history of
irrational behavior; the defendant’s demeanor at a trial, if any (again, Garcia
pleaded guilty); and any prior medical opinion on competency. United States
v. Davis, 61 F.3d 291, 304 (5th Cir. 1995). Pursuant to 18 U.S.C. § 4241(b), a
court “may” order a psychiatric or psychological examination prior to the
hearing.
      We discern no clear or obvious error in the court’s decision not to order a
competency hearing or evaluation. See Puckett, 556 U.S. at 135. Although
Garcia cited a contemporaneous medical report—which is not part of the
record—diagnosing him with ADHD, bipolar disorder, and panic disorder, as
well as his mother’s uncorroborated assertion that he also suffered from
schizophrenia, the mere fact of a mental diagnosis does not mandate a
competency hearing under 18 U.S.C. § 4241(a). See United States v. Mitchell,



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709 F.3d 436, 439-41 (5th Cir. 2013). Garcia offered no proof of previous
irrational behavior on his part; and, based on his demeanor and responses
during the hearing on his motion, the court could reasonably determine there
were no active competency concerns. See Davis, 61 F.3d at 304. Moreover,
Garcia’s colloquy with the court reflected his understanding of the nature and
consequences of the proceedings against him and his ability to assist counsel
in his own defense. See 18 U.S.C. § 4241(a).
      AFFIRMED.




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