                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 10a0072n.06

                                       Nos. 08-3721, 08-3722                             FILED
                                                                                      Feb 04, 2010
                            UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )
          Plaintiff-Appellee,                             )
                                                          )
v.                                                        )    ON APPEAL FROM THE UNITED
                                                          )    STATES DISTRICT COURT FOR
ANTHONY RAY ARTRIP,                                       )    THE SOUTHERN DISTRICT OF
                                                          )    OHIO
          Defendant-Appellant.                            )
                                                          )
                                                          )
                                                          )


          Before: MERRITT, COOK, and KETHLEDGE, Circuit Judges.

          KETHLEDGE, Circuit Judge. Anthony Ray Artrip’s attorney expressly assured the district

court at Artrip’s plea hearing that Artrip was competent to proceed with his plea. Artrip now argues,

through the same attorney, that Artrip’s incompetence at the hearing was so apparent that the court,

sua sponte, should have ordered a separate competency hearing. We reject that argument, and

affirm.

          Artrip pled guilty to armed bank robberies in Ohio and Florida, in violation of 18 U.S.C.

§ 2113(a) and (d), and brandishing a firearm in furtherance of a bank robbery, in violation of 18

U.S.C. § 924(c)(1)(A)(ii). The district court sentenced him to 243 months’ imprisonment on the

robbery counts, consecutive with 84 months’ imprisonment on the brandishing count. On appeal,

Artrip asserts that he did not understand the proceedings against him and that he was mentally
Nos. 08-3721, 08-3722
United States v. Artrip

incompetent to take part in them. He argues that, by failing to order a competency hearing, the

district court violated his due process rights. See generally Pate v. Robinson, 383 U.S. 375, 378

(1966) (“the conviction of an accused person while he is legally incompetent violates due process”);

see also 18 U.S.C. § 4241(a) (requiring a court to order such a hearing whenever “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”).

       Due process requires a court to order a competency hearing only when “a reasonable judge

. . . should have experienced doubt with respect to competency[.]” United States v. Denkins, 367

F.3d 537, 547 (6th Cir. 2004) (internal quotation marks omitted). The district court expressly found

Artrip to be competent here. We review that finding for clear error. See Mackey v. Dutton, 217 F.3d

399, 412-13 (6th Cir. 2000) (competence is a question of fact).

       Nothing in the record undermines the district court’s finding. The court extensively

questioned Artrip at his plea hearing. His responses were appropriate and demonstrated that he

understood the proceedings. The court also had the results of two prior competency evaluations by

psychiatric professionals. Both evaluators not only certified Artrip as competent, but also flagged

him as a malingerer—a person who falsifies symptoms to avoid criminal prosecution.

       Artrip now argues that the district court “rushed Artrip through a plea hearing without

reviewing competency.” But a party cannot tell the district court one thing and then tell us the

opposite. And here, Artrip’s lawyer in the district court—who is again his lawyer before this

one—expressly told the district court the following:

                                                -2-
Nos. 08-3721, 08-3722
United States v. Artrip

                I want the Court to feel comfortable that what we’re doing is not simply an
       effort to expedite matters or move Mr. Artrip quickly through the system and go on
       to the next matter. What we’ve done is we’ve indulged on your patience. Mr. Artrip
       has been very cooperative lately with me, and I feel confident that he understood
       what [the prosecutor] just went through[.]

(Emphasis added.)

       That “confiden[ce]” was justified. The record fully supports the district court’s determination

of competency. Artrip’s conviction and sentence are affirmed.




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