                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 07-50096
                Plaintiff-Appellee,                D.C. No.
               v.                             CR-05-01154-JSL-
SHANE ROBERT FERGUSON,                                01
             Defendant-Appellant.
                                                 OPINION

         Appeal from the United States District Court
             for the Central District of California
          J. Spencer Letts, District Judge, Presiding

                  Argued and Submitted
          November 20, 2008—Pasadena, California

                      Filed March 27, 2009

       Before: Susan P. Graber and Richard R. Clifton,
    Circuit Judges, and David G. Trager,* District Judge.

                    Opinion by Judge Graber




   *The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.

                                3675
3678              UNITED STATES v. FERGUSON




                         COUNSEL

Gary P. Burcham, Burcham & Zugman, A.P.C., San Diego,
California, for the defendant-appellant.

Rupa S. Goswami, Assistant United States Attorney, Cyber
and Intellectual Property Crimes Section, Los Angeles, Cali-
fornia, for the plaintiff-appellee.


                         OPINION

GRABER, Circuit Judge:

  Defendant Shane Robert Ferguson videotaped himself sex-
ually molesting his four-year-old neighbor. The government
indicted Defendant on one count of possession of child por-
nography and one count of production of child pornography.
Defendant pleaded not guilty and insisted on representing
himself at trial and sentencing. Throughout the pre-trial pro-
ceedings, Defendant exhibited bizarre behavior that befuddled
everyone involved, including the district court. The district
court several times expressed its desire to deny Defendant’s
request to represent himself. But binding law at the time
                  UNITED STATES v. FERGUSON                3679
required the district court to allow self-representation because
Defendant was mentally competent to stand trial. Noting that
its hands were tied, the district court acquiesced. Other than
making a small number of nonsensical motions at sentencing,
Defendant did nothing at trial or sentencing. A jury convicted
Defendant, and the district court sentenced him to the statu-
tory maximum of 480 months’ imprisonment.

   Today, we address the effect of the Supreme Court’s inter-
vening decision in Indiana v. Edwards, 128 S. Ct. 2379
(2008). In Edwards, the Court held that a different standard
of mental competency applies when considering a defendant’s
request for self-representation than when considering whether
a defendant may be tried at all. Id. at 2386. We remand to the
district court to determine whether, in light of Edwards, it
would have made a different mental competency decision. On
all other issues, we affirm.

       FACTUAL AND PROCEDURAL HISTORY

   In 2005, the grandparents of a four-year-old girl became
concerned that Defendant was sexually molesting their grand-
daughter. Defendant, who was in his early 30s, was a neigh-
bor and close friend of the victim’s family. Acting on credible
information, the police executed a search warrant at Defen-
dant’s house.

   The search uncovered numerous incriminating items of
child pornography, including known images and videos of
child pornography, as well as a home-made video of Defen-
dant molesting the victim. Defendant confessed that he had
filmed the assault using a hidden pin-hole camera in his bed-
room, that he had lured the victim into participating by show-
ing her images of child pornography, and that he had
molested the victim. The government indicted Defendant on
one count of production of child pornography, in violation of
18 U.S.C. § 2251(a), and one count of possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).
3680              UNITED STATES v. FERGUSON
  As we detail below, Defendant’s odd pre-trial conduct
caused the district court much consternation. In a series of
hearings and conferences, the court, Defendant’s various law-
yers, the government’s lawyers, and Defendant himself
engaged in lengthy discussions about self-representation and
about Defendant’s competency to stand trial.

   The court originally appointed two defense lawyers to rep-
resent Defendant. At a pre-trial hearing, Defendant’s lawyers
requested a competency hearing because of their difficulties
in communicating with Defendant. The court was initially
skeptical and decided to question Defendant. Defendant
addressed the court as follows, requesting six “duties,” which
would become a theme of Defendant’s pre-trial conversations
with the court:

    I’ve requested these following six duties:

       One, request that the judge issue me the appear-
    ance bond so that I may enter a plea; two, not to
    argue the facts; three, request the judge close all
    accounts; four, request the judge waive all public
    charges by the exemption in accordance to public
    policy; and, five, request the judge present me with
    the order of the court; and, six, request the judge
    release me.

When asked whether he wanted to plead guilty, Defendant
responded, “Well, your honor, I fully accept the charges for
value and for consideration. And I ask that these charges,
these accounts be closed out and settled by the exemption in
accordance to public policy.” The court responded that it
“ha[d] no idea what he’s talking about.” When Defendant
explained his answers by reference to “House Joint Resolu-
tion 192, public law 73-10, and UCC 3-419,” the court
ordered a competency hearing. Defendant’s reliance on the
Uniform Commercial Code (“UCC”) as a defense to his
actions would also be a consistent theme of Defendant’s.
                   UNITED STATES v. FERGUSON                 3681
   Several weeks later, the district court conducted a compe-
tency hearing. The court-appointed psychologist had submit-
ted a report on Defendant’s mental competency to stand trial.
The report concluded that Defendant “is presently mentally
competent to stand trial,” because he “is presently malinger-
ing mental illness and is consciously attempting to feign a dis-
order to delay or avoid prosecution.” Neither party objected
to the report’s conclusions, and the district court ruled that
Defendant was competent “to stand trial[ ] and . . . to assist
counsel in the process of trial preparation and dealing with the
trial matters.”

   Defendant again asked to address the court. He stated that
he was “here by special appearance” (yet another theme) and
that he wanted to “put these legal matters to peace . . . . [H]ow
may I do that? How may we handle this in the private today?”
After a discussion of why that was not possible, Defendant
asked for “[o]ne last thing”: “I’d like the record to reflect that
I have presented [my lawyer] a notice of dishonor for not
completing the six duties I have requested her to complete.”
The court told Defendant that it “[didn’t] know where that
stuff comes from,” but that the only thing that the court could
do is remove his current lawyers as counsel. Defendant did
not so request, and the court adjourned the hearing.

   One week later, the court conducted a change-of-plea hear-
ing on the belief that Defendant wished to plead guilty. After
a confusing exchange with the judge, Defendant stated: “I
wish not to enter a plea at this time. I wish to be peace [sic],
Your Honor.” The court proceeded anyway but, when Defen-
dant was given the chance to speak, he reiterated: “I do not
wish to change my plea to a guilt guilty [sic] plea, Your
Honor.” The court tried again and, after a few responsive
answers, Defendant responded: “I do not wish to testify at this
time.” The court then concluded that the case would go to trial
and adjourned the hearing.

   Eight days later, the court conducted a status conference to
discuss a motion filed by Defendant’s lawyers concerning
3682               UNITED STATES v. FERGUSON
jurisdiction. As the parties discussed various matters, Defen-
dant indicated a desire to speak and informed the court that
he had fired his current lawyers. The court instructed Defen-
dant at length that, although he did “have the option to repre-
sent [him]self” because the right to represent oneself is “an
absolute legal right,” the court strongly advised against it. The
court then gave a lengthy warning about the dangers of self-
representation. Defendant was unpersuaded and still sought to
fire his lawyers and withdraw the pending motions that those
lawyers had filed. The court ultimately acquiesced, and
Defendant requested that “the court set off and adjust those
[charges] by the exemption in accordance of this policy.” The
court responded that Defendant was speaking “gibberish [but]
that doesn’t make you incompetent.”

   After more confusing exchanges, the court noted that
Defendant was now representing himself because “he’s got an
unrestricted right to do that.” At one point, the court stated
that it “would be desirable to have him declared incompetent,
but that’s not going to happen because he doesn’t quali[f]y.
So he’s going to go to trial and then he’s going to get the con-
sequences of that, not all of which are socially good.” The
government’s lawyer expressed concern about allowing
Defendant to represent himself, and Defendant’s recently
fired lawyers stated that “it would be in [Defendant’s] best
interest to have new counsel appointed.” After some discus-
sion, the court decided to appoint new counsel.

   A week later, the court conducted an in-chambers confer-
ence with the government’s lawyer and Defendant’s new law-
yer. Defendant’s new lawyer had encountered the same
difficulties as had Defendant’s previous lawyers in communi-
cating with Defendant. The parties and the court discussed at
length the problems with Defendant’s actions. Both the judge
and Defendant’s lawyer stated numerous times that Defendant
has an “absolute right” to represent himself. All parties,
including Defendant, then met in open court. The court again
instructed Defendant that “[y]ou start with an absolute right
                   UNITED STATES v. FERGUSON                3683
to represent yourself.” Defendant did not request self-
representation at that time.

   Two weeks later, the court conducted another in-chambers
conference outside Defendant’s presence. Defendant’s lawyer
said that Defendant wanted to represent himself. The court
responded that “[t]he right to represent yourself and the right
to be represented by counsel [are] clear. My own judgment is
probably that the right to . . . represent yourself, if anything,
trumps.” The government’s lawyer was again reluctant
because allowing Defendant to represent himself was not in
Defendant’s best interest and might be reversible error.

   All parties, including Defendant, then met in open court.
The court began by reminding Defendant that his right to rep-
resent himself was “absolute.” The court and Defendant then
engaged in a long colloquy about various matters, during
which it became clear that Defendant wished to rely on the
UCC. The court eventually asked Defendant whether he
wanted to represent himself. Defendant replied affirmatively.
The government then suggested that perhaps the court should
appoint a lawyer who is familiar with the UCC. Given the
government’s concerns that Defendant had not unequivocally
expressed his desire to represent himself, the court asked
again, and Defendant again responded affirmatively, that he
wished to represent himself. After Defendant expressed his
choice for self-representation a third time, unequivocally, the
court accepted Defendant’s choice. The court then appointed
Defendant’s most recent lawyer as advisory counsel.

   At trial, Defendant did not make an opening statement; did
not cross-examine any government witnesses; did not raise
any objections; did not present witnesses; did not testify; and
made no closing statement. He also did not object to any
jurors. The jury convicted Defendant of both counts.

   The presentence report (“PSR”) recommended a total
offense level of 49, corresponding to a Sentencing Guidelines
3684              UNITED STATES v. FERGUSON
“range” of life imprisonment. Defendant submitted three non-
sensical motions, which the district court denied. Otherwise,
Defendant did not object to any aspect of the PSR, and the
court adopted its calculations. The court sentenced Defendant
to 480 months’ imprisonment, the statutory maximum.

  Defendant timely appeals and is represented by counsel on
appeal.

                        DISCUSSION

   Defendant’s primary argument on appeal is that the inter-
vening Supreme Court decision, Edwards, 128 S. Ct. 2379,
requires us to reverse his conviction or sentence. Because we
reach that issue only if Defendant’s other arguments for rever-
sal fail, we address those other arguments first. We therefore
consider (1) Defendant’s constitutional challenges to the con-
victions, (2) his procedural and substantive challenges to the
sentence and, finally, (3) his argument that Edwards requires
reversal.

  A.   Constitutional Challenges to the Convictions

   [1] Defendant challenges his convictions on constitutional
grounds. His arguments are identical to the defendant’s argu-
ments in United States v. McCalla, 545 F.3d 750 (9th Cir.
2008), cert. denied, 2009 WL 425144 (U.S. Feb. 23, 2009)
(No. 08-829), which we rejected. See id. at 753-56 (rejecting
the defendant’s argument that “Congress lacks authority
under the Commerce Clause to regulate the noncommercial
and wholly intrastate production of child pornography, and
therefore, as applied to him, 18 U.S.C. § 2251(a) is unconsti-
tutional”); id. at 755-56 (holding that as-applied challenges
relying on the “de minimis” character of the defendant’s
actions are foreclosed); id. at 756 (holding that United States
v. McCoy, 323 F.3d 1114 (9th Cir. 2003), had been effectively
overruled by Gonzales v. Raich, 545 U.S. 1 (2005)). Defen-
dant’s arguments are therefore foreclosed. Subject to our dis-
                     UNITED STATES v. FERGUSON                       3685
cussion below, in Part C, Defendant’s convictions were not in
error.

  B.    Challenges to the Sentence

   We review for abuse of discretion the district court’s sen-
tence. United States v. Bendtzen, 542 F.3d 722, 725 (9th Cir.
2008). “We will reverse the sentence only where it was proce-
durally erroneous or substantively unreasonable.” Id. We
review for plain error objections not raised to the district
court. United States v. Waknine, 543 F.3d 546, 554 n.4 (9th
Cir. 2008).

   [2] On appeal, Defendant raises two procedural challenges
to his sentence.1 First, he argues that the district court did not
adequately consider the factors in 18 U.S.C. § 3553(a). We
disagree. The district court stated that it had considered the
§ 3553(a) factors, and Defendant did not provide any argu-
ments requiring further explanation. The district court did not
abuse its discretion. See United States v. Stoterau, 524 F.3d
988, 999 (9th Cir. 2008) (“[W]hen a defendant’s arguments
are straightforward and uncomplicated, the district court does
not abuse its discretion when it listens to the defendant’s argu-
ments and then simply finds those circumstances insufficient
to warrant a sentence lower than the Guidelines range.”
(brackets and internal quotation marks omitted)), cert. denied,
129 S. Ct. 957 (2009).
  1
   Defendant also argues that his sentence was substantively unreason-
able. We disagree. Despite equaling the statutory maximum, the district
court’s sentence of 480 months was below the Guidelines range of life
imprisonment. Nothing in the record convinces us that Defendant’s sen-
tence was unreasonable. See United States v. Carty, 520 F.3d 984, 994
(9th Cir.) (en banc) (“ ‘[W]hen the judge’s discretionary decision accords
with the [United States Sentencing] Commission’s view of the appropriate
application of § 3553(a) in the mine run of cases, it is probable that the
sentence is reasonable.’ ” (quoting Rita v. United States, 127 S. Ct. 2456,
2465 (2007))), cert. denied, 128 S. Ct. 2491 (2008).
3686                 UNITED STATES v. FERGUSON
   Second, Defendant argues that the district court erred in
calculating the Guidelines range. The PSR recommended a
total offense level of 49, corresponding to a Guidelines
“range” of life imprisonment. Defendant did not object to the
PSR’s recommendations at sentencing, and the district court
adopted the PSR. Because the statutory maximum for Defen-
dant’s convictions is 480 months, the district court sentenced
Defendant to that term of imprisonment. Defendant failed to
object at sentencing, so we review for plain error. Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732-34
(1993).

   The district court did not fail completely to calculate the
Guidelines range: The court stated that it calculated the total
offense level as 49, corresponding to a range of 480 months.2
Defendant’s argument is that the district court did not actually
engage in a calculation personally, but instead adopted the
PSR’s recommendation wholesale, without any analysis.
Defendant stresses the following remark, made by the district
court early in the sentencing hearing: “[A] number of [the
PSR’s recommendations were] . . . probably in error, but it
turns out that even if you subtract those things it doesn’t make
any difference.” (Emphasis added.) According to Defendant,
even if a sentencing court must not explain each sentencing
adjustment in the absence of an objection by the defendant, at
the very least it must explain why it accepts sentencing adjust-
ments that it believes are “probably in error.” We do not quar-
rel with Defendant’s premise, but we understand the district
court’s comment a bit differently.

   [3] On appeal, Defendant argues that the Guidelines calcu-
lation was erroneous for four reasons. One of those reasons is
that there were insufficient facts to establish a “pattern of
activity involving prohibited sexual conduct.” U.S.S.G.
  2
   As noted, the range is actually “life,” but the statutory maximum for
Defendant’s convictions dictated that the maximum was 480 months.
Defendant does not argue that this shorthand was erroneous.
                   UNITED STATES v. FERGUSON                3687
§ 4B1.5(b). We are not persuaded. The application notes to
the Guideline provide that a pattern is established “if on at
least two separate occasions, the defendant engaged in prohib-
ited sexual conduct with a minor.” Id. cmt. n.4(B)(i). Apply-
ing that definition, the record here contains ample evidence of
a pattern of prohibited sexual conduct with the victim.

   [4] From that conclusion, it follows that, even if Defen-
dant’s other three challenges to the Guidelines calculation
were sustained, the Guidelines range would still be “life.” In
other words, the probable errors noted by the district court
could have had no effect whatsoever on the Guidelines range.
We therefore understand the second clause of the district
court’s statement—“but it turns out that even if you subtract
those things [probable errors] it doesn’t make any difference”
—in that light. We need not decide whether the district
court’s failure to address the unchallenged sentencing adjust-
ments constitutes error, because our review is for plain error.
Even if the district court erred, the error could not have
changed the Guidelines range and, therefore, the alleged error
did not “affect[ ] the outcome of the district court proceed-
ings.” Olano, 507 U.S. at 734; see also Waknine, 543 F.3d at
553 (holding that a procedural error did not affect the defen-
dant’s substantial rights because the defendant did not con-
vince us that the correct procedure “would have changed the
district court’s conclusion as to the appropriate prison term”).

  [5] In conclusion, we hold that, subject to our discussion
below, in Part C, the district court’s sentence was not in error.

  C.   Mental Competence and Self-Representation

   We turn now to the dominant issue in this case, which
stands at the intersection of two well-known and important
constitutional principles: a criminal defendant’s right to self-
representation, see generally Faretta v. California, 422 U.S.
806 (1975); and the prohibition against trying a criminal
defendant who lacks “mental competency,” see generally
3688              UNITED STATES v. FERGUSON
Dusky v. United States, 362 U.S. 402 (1960) (per curiam).
The former principle holds that a defendant who knowingly,
voluntarily, and intelligently waives the right to counsel gen-
erally must be permitted to represent himself or herself at
trial. Faretta, 422 U.S. at 835. And the latter principle holds
that a defendant lacks mental “competency” to stand trial
unless he or she has “a rational as well as factual understand-
ing of the proceedings” and “has sufficient present ability to
consult with his [or her] lawyer with a reasonable degree of
rational understanding.” Dusky, 362 U.S. at 402 (internal quo-
tation marks omitted). Those principles intersect where, as
here, a defendant meets the Dusky standard for mental compe-
tence (despite irrational and nonsensical behavior) and, addi-
tionally, insists on representing himself during trial and
sentencing. Must the trial court permit Defendant to represent
himself?

   Until recently, the Supreme Court’s guidance had indicated
that the answer was “yes.” See Godinez v. Moran, 509 U.S.
389, 398 (1993) (“[W]e reject the notion that competence to
plead guilty or to waive the right to counsel must be measured
by a standard that is higher than (or even different from) the
Dusky standard.”); see also id. at 404 (Kennedy, J., concur-
ring in part and concurring in the judgment) (“The Due Pro-
cess Clause does not mandate different standards of
competency at various stages of or for different decisions
made during the criminal proceedings.”). And, like most of
our sister circuits, we had so held. See United States v. Her-
nandez, 203 F.3d 614, 620-21 (9th Cir. 2000) (“Where a
defendant’s waiver of his Sixth Amendment right to counsel
meets [the Faretta] requirements, a court must permit the
defendant to proceed pro se.”); id. at 620 n.8 (“[A] defen-
dant’s competence to waive the right to counsel is measured
by the same standard under which competence to stand trial
is evaluated.”). Quite understandably, then, the district court
and the parties repeatedly referred to Defendant’s “absolute
right” to represent himself. And, in response to Defendant’s
                      UNITED STATES v. FERGUSON                         3689
valid waiver of his right to counsel, the district court granted
Defendant’s request.

   While this case was pending on appeal, however, the
Supreme Court decided Edwards, 128 S. Ct. 2379. There, the
Court addressed whether the general Dusky mental compe-
tence standard—as described in Godinez—applies to the
question of mental competence for self-representation at trial.
Edwards, 128 S. Ct. at 2383. The Court “concede[d] that
Godinez bears certain similarities with the present case,” but
nevertheless held that Godinez did not control. Id. at 2385. “In
Godinez, the higher standard sought to measure the defen-
dant’s ability to proceed on his own to enter a guilty plea;
here the higher standard seeks to measure the defendant’s
ability to conduct trial proceedings.” Id. (emphases added).

   [6] The Court then turned to the “open” question of the
proper standard to measure a defendant’s competence to con-
duct trial proceedings. Id. It held that the question of mental
competence for self-representation “calls for a different stan-
dard” than the question of mental competence for assistance
of counsel at trial. Id. at 2386. The Court therefore recognized
“a mental-illness-related limitation on the scope of the self-
representation right.” Id. at 2384. The Court explained that

      the Constitution permits judges to take realistic
      account of the particular defendant’s mental capaci-
      ties by asking whether a defendant who seeks to con-
      duct his own defense at trial is mentally competent
      to do so. That is to say, the Constitution permits
      States to insist upon representation by counsel for
      those competent enough to stand trial under Dusky,
      but who still suffer from severe mental illness to the
      point where they are not competent to conduct trial
      proceedings by themselves.

Id. at 2387-88.3 The Court declined to adopt a “specific stan-
  3
   Both Edwards and Godinez involved the parameters of the right to self-
representation in state trial courts. Although this case arises in the context
of a federal trial court, we see no relevant constitutional difference here.
3690                UNITED STATES v. FERGUSON
dard,” id. at 2388, leaving it instead to the discretion of the
“trial judge, . . . who . . . will often prove best able to make
more fine-tuned mental capacity decisions, tailored to the
individualized circumstances of a particular defendant,” id. at
2387.

   The Court’s answer was driven by “[s]everal consider-
ations.” Id. at 2386. First, the Court found that its precedents
“slightly” favored a different standard. Id. Second, the Court
recognized that “[m]ental illness itself is not a unitary con-
cept. . . . In certain instances an individual . . . will be able
to work with counsel at trial, yet at the same time he may be
unable to carry out the basic tasks needed to present his own
defense without the help of counsel.” Id. Third, “insofar as a
defendant’s lack of capacity threatens an improper conviction
or sentence, self-representation in that exceptional context
undercuts the most basic of the Constitution’s criminal law
objectives, providing a fair trial.” Id. at 2387. “Further, pro-
ceedings must not only be fair, they must ‘appear fair to all
who observe them.’ ” Id. (quoting Wheat v. United States, 486
U.S. 153, 160 (1988)).

   [7] In the light of the Supreme Court’s latest decision, we
can see that the district court (understandably) applied an
erroneous legal standard. The district court followed, natu-
rally enough, existing Supreme Court and Ninth Circuit law,
repeatedly referring to Defendant’s “absolute right” to repre-
sent himself once the court found him competent to stand
trial. Edwards changed that proposition. The standard for a
defendant’s mental competence to stand trial is now different
from the standard for a defendant’s mental competence to rep-
resent himself or herself at trial.4 Id. at 2384-86.
  4
   We therefore recognize as overruled our earlier decisions—such as
United States v. Hernandez, 203 F.3d 614 (9th Cir. 2000)—that are
“clearly irreconcilable” with Edwards. Miller v. Gammie, 335 F.3d 889,
900 (9th Cir. 2003) (en banc); see Hernandez, 203 F.3d at 620 n.8 (“[A]
defendant’s competence to waive the right to counsel is measured by the
same standard under which competence to stand trial is evaluated.”).
                   UNITED STATES v. FERGUSON                3691
   The question, then, is whether Edwards applies here factu-
ally, that is, whether Defendant was mentally competent to
conduct his own defense under the Edwards standard. There
are many indications in the record that Edwards does not
apply. In pre-trial conferences, the district judge observed that
Defendant likely was either malingering or intentionally
obstructing the proceedings to inject error. The psychiatrist’s
report stated that Defendant was malingering, and there are no
contrary psychiatric reports. Whereas the Supreme Court in
Edwards was assessing a defendant with a “severe mental ill-
ness,” 128 S. Ct. at 2388, no similar psychiatric report is pres-
ent here.

   [8] But there are also many indications in the record that
Edwards might apply. For example, we note that the psychiat-
ric reports are of limited value, because they considered
Defendant’s mental competency under the pre-Edwards stan-
dard. The psychiatric reports considered whether Defendant
was mentally competent to work with counsel at trial—the
correct pre-Edwards inquiry. But the Supreme Court made
clear that a different inquiry now applies: whether Defendant
is able “to carry out the basic tasks needed to present his own
defense without the help of counsel.” Id. at 2386. Next, we
note that Defendant’s behavior was decidedly bizarre, as even
a cursory review of the transcripts reveals. He repeatedly
demanded that his counsel follow his six made-up “duties”
and fired his lawyers when they were unable to meet those
“duties.” He repeatedly insisted that he was making only a
“special appearance,” asked to settle the case “in the private,”
requested the judge to recognize the “public policy” exception
in the UCC and dismiss the case “for value,” and attempted
to file a motion of “dishonor” against his lawyers. Finally,
Defendant’s behavior at trial and sentencing gives us pause,
as it did the district court. At trial, Defendant did absolutely
nothing—no voir dire questions for the judge to ask, no open-
ing argument, no closing argument, no objections, no cross-
examination, no evidence, and no witnesses. At sentencing, he
3692               UNITED STATES v. FERGUSON
submitted three nonsensical motions, did not object to the
PSR, and did not make any legal arguments.

   Defendant’s behavior at trial could be interpreted as a des-
perate (but competent) move in the hope that the government
would misstep, or that the jury would have sympathy, or for
some other strategic reason. But, once the jury convicted him,
there was far less reason for continuing his odd behavior at
sentencing. Yet Defendant continued his bizarre and wholly
ineffective behavior. Faced with the near-certain likelihood of
the statutory maximum sentence, Defendant had almost noth-
ing to gain and everything to lose by continuing with his “six
duties” demands, UCC defense, and refusal to mount any
legal challenges to the sentence.

   The Supreme Court’s reasons in Edwards also point to the
possibility that Edwards applies here. Defendant’s actions
suggest that he might have been “unable to carry out the basic
tasks needed to present his own defense without the help of
counsel.” Id. at 2386. Furthermore, Defendant’s complete
failure to defend himself seriously jeopardized the fairness of
the trial and sentencing hearing and, at the very least, seri-
ously jeopardized the appearance of fairness. Id. at 2387. Per-
haps most importantly, the record suggests that the district
court might have forced counsel upon Defendant, had the
court had the benefit of reading Edwards. Even the govern-
ment’s lawyer was extremely keen to have Defendant repre-
sented, because he was concerned that self-representation in
this case would be error. Reviewing the record, there was a
lot of hand-wringing by the court—both when Defendant was
present and when he was not—that Defendant’s self-
representation would seriously jeopardize the fairness of the
trial. For instance, the court stated at one point before trial
that it “would be desirable to have him declared incompetent”
and, at another point, also before trial, “I think that it is terri-
ble to let him represent himself.” At the sentencing hearing,
the court said that it had “never heard of an example of some-
                     UNITED STATES v. FERGUSON                      3693
body that behaved at trial the way [Defendant] had,” in 20
years on the federal bench.

   Ultimately, however, we cannot accurately determine from
the record whether the district court would have operated dif-
ferently with the benefit of Edwards. Fortunately, we need not
divine the district court’s hypothetical conclusions.

   We have dealt previously with a situation similar to this
one: where an intervening Supreme Court decision granted
theretofore-lacking discretion on the district court. Before the
Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005), the Sentencing Guidelines were mandatory.
When the Court held that the Guidelines were not mandatory,
it threw into uncertainty hundreds of cases still on appeal,5 in
which the district court had sentenced the defendant under the
mandatory Guidelines. The question in those cases was
whether the district court would have imposed a different sen-
tence had it known that the Guidelines were advisory only.

   In United States v. Ameline, 409 F.3d 1073, 1079 (9th Cir.
2005) (en banc), we held that “the best way to deal with this
unusual situation is to . . . ask the person who knows the
answer, the sentencing judge.” (Footnote omitted.) We rea-
soned that “[t]his is ‘[t]he only practical way (and it happens
also to be the shortest, the easiest, the quickest, and the surest
way) to determine’ ” the answer. Id. (second alteration in
original) (quoting United States v. Paladino, 401 F.3d 471,
483 (7th Cir. 2005)). We therefore detailed a “limited
remand” process. Id. at 1084-85. Briefly, if the district court
held that it would have imposed the same sentence, then the
sentence would be re-entered. Id. at 1085. If not, however,
then the district court would conduct a new sentencing pro-
ceeding. Id.
  5
   Unlike the effect of the Court’s decision in Booker, we anticipate that
Edwards and our decision today will affect very few, if any, pending
cases. As our discussion makes clear, Defendant’s actions and the proce-
dural history of this case are very unusual.
3694                  UNITED STATES v. FERGUSON
   [9] Here, we follow an analogous pattern and remand to the
district court for the limited purpose of determining whether
Edwards would have affected the district court’s decisions.6
Cf. United States v. Arenburg, No. 08-CR-090A, 2008 WL
3286444, *5 (W.D.N.Y. Aug. 7, 2008) (considering a post-
trial motion to vacate the jury’s verdict and asking “whether
a new trial is required in light of the Supreme Court’s holding
in Edwards”); id. (“Clearly, as a result of Edwards, this
[c]ourt had the authority to . . . revoke the defendant’s pro se
status if the [c]ourt believed that the defendant’s mental ill-
ness was so severe that he was not competent to continue rep-
resenting himself at trial.”). Our decision is guided both by
Ameline and by the Supreme Court’s recognition that “the
trial judge, particularly one such as the trial judge in this case,
who presided over [Defendant’s] competency hearing[ ] and
his . . . trial[ ], will often prove best able to make more fine-
tuned mental capacity decisions, tailored to the individualized
circumstances of a particular defendant.” Edwards, 128 S. Ct.
at 2387.

   On remand, the district court may—but is not required to—
take additional evidence or allow briefing on Defendant’s
state of mind at the relevant time. If the district court con-
cludes that it would not have altered its decisions at either
trial or sentencing even with the benefit of Edwards, then the
conviction and sentence will stand. If the court rules that it
would have altered its decision at trial, then the court should
   6
     In United States v. DeShazer, 554 F.3d 1281, 1290 (10th Cir. 2009),
the Tenth Circuit held—as we hold today—that Edwards does not compel
a trial court to deny a defendant the exercise of his or her right to self-
representation; it simply permits a trial court to require representation for
a defendant who lacks mental competency to conduct trial proceedings.
The court in DeShazer affirmed the defendant’s conviction, apparently on
the belief that Edwards would have had no effect on the district court’s
decision. Id. Here, because the record contains many statements suggest-
ing that the district court might have ruled differently under an Edwards
standard, we remand for the limited purpose of permitting the district court
to make that discretionary decision.
                  UNITED STATES v. FERGUSON               3695
vacate the conviction and sentence and conduct a new trial,
with Defendant represented by counsel. If the court rules that
it would have altered its decision at sentencing only, then the
conviction will stand, but the court should vacate the sentence
and conduct a new sentencing proceeding, with Defendant
represented by counsel.

   REMANDED with instructions to consider the effect of the
intervening Supreme Court decision in Edwards; otherwise
AFFIRMED.
