                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 13 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 17-10109
                                                    17-10331
                Plaintiff-Appellee,
                                                D.C. No.
 v.                                             3:15-cr-08178-SRB-2

NOLAN LEWIS,
                                                MEMORANDUM*
                Defendant-Appellant.

                   Appeals from the United States District Court
                            for the District of Arizona
                    Susan R. Bolton, District Judge, Presiding

                           Submitted October 16, 2018**
                             San Francisco, California

Before: THOMAS, Chief Judge, GRABER, Circuit Judge, and LASNIK,***
District Judge.

      Defendant-Appellant Nolan Lewis pleaded guilty to second degree murder,

and he waived his right to appeal. At a restitution hearing, defense counsel raised


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
the issue of Lewis’s competency for the first time and filed a motion for

determination of competency, which the district court denied. Lewis timely appeals

both the final judgment and the denial of that motion.

      We review de novo an appellant’s waiver of his right to appeal. United

States v. Bibler, 495 F.3d 621, 623 (9th Cir. 2007). We give effect to a waiver if it

is made “knowingly and voluntarily.” United States v. Tsosie, 639 F.3d 1213, 1217

(9th Cir. 2011) (internal quotation marks omitted). We agree with Lewis that an

incompetent defendant cannot knowingly waive his right to appeal. Godinez v.

Moran, 509 U.S. 389, 401 & n.12 (1993). Accordingly, we have jurisdiction to

determine whether the district court erred by declining to order a competency

hearing.

      1. The district court did not err in declining to order a sua sponte

competency hearing. Relevant factors include the defendant’s medical history, his

behavior in and out of court, and defense counsel’s statements about the

defendant’s competence. United States v. Garza, 751 F.3d 1130, 1134 (9th Cir.

2014). Lewis confirmed in his colloquy with the magistrate judge that he had read

the plea agreement, understood its provisions, and had voluntarily agreed to it.

There was no indication that he was incompetent or that he lacked “the capacity for

reasoned choice among the alternatives.” United States v. Myers, 993 F.2d 713,

714 (9th Cir. 1993) (internal quotation marks omitted).


                                          2                                    17-10109
      Prior to sentencing, Lewis obtained a neuropsychological evaluation from

Dr. Marc S. Walter. Dr. Walter’s report did not raise any concerns about his

competency. In his “brief competency interview” with Lewis, Dr. Walter “did not

find any obvious difficulties[,] except that [Lewis] state[d] that he [did] not really

remember much about the day when the offenses allegedly occurred.” Dr. Walter’s

evaluation identifies some cognitive issues and a learning disorder, but does not

find Lewis incompetent. In light of the entire record, those findings are insufficient

to warrant further competency proceedings. See United States v. Neal, 776 F.3d

645, 655-56 (9th Cir. 2015); Garza, 751 F.3d at 1135-36. Lewis participated

appropriately in his proceedings, even giving a thoughtful allocution. His defense

counsel at the time raised no concerns about his competence. The district court

committed no error in failing to hold a hearing at that time.

      2. The district court did not abuse its discretion in denying the motion, filed

at a restitution hearing, for determination of competency. United States v. George,

85 F.3d 1433, 1437 (9th Cir. 1996). The motion raised concerns by Lewis’s new

defense counsel, after he interacted with Lewis over an aggregate of two and a half

hours. There was no new medical evidence, nor any inappropriate conduct from

Lewis.

      AFFIRMED.




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