                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  ___________

                                     No. 11-4073
                                    ___________

                           UNITED STATES OF AMERICA

                                           v.

                                MICHAEL BANKOFF,

                                                       Appellant.


                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. No. 2-07-cr-00185-001)
                    District Judge: Honorable Michael M. Baylson


                       Submitted Under Third Circuit LAR 34.1(a)
                                   on July 12, 2012


             Before: FUENTES, HARDIMAN, and ROTH, Circuit Judges


                           (Opinion filed: February 28, 2013)



                                     OPINION


ROTH, Circuit Judge:

      Michael Bankoff appeals from the District Court’s October 28, 2011, amended

judgment of conviction and sentence entered following our July 27, 2010, order disposing

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of the parties’ cross-appeals from the initial judgment and remanding for further

proceedings. For the following reasons, we will affirm the judgment of conviction and

the sentence entered by the District Court.

I.       Background

         We briefly summarize the relevant facts, which we previously set forth in detail in

our opinion addressing the first appeal, United States v. Bankoff, 613 F.3d 358 (3d Cir.

2010).

         In 1999, Bankoff began receiving Social Security disability benefits. The Social

Security Administration (SSA) subsequently informed him that he was required to repay

a $9,000 overpayment. Bankoff sought a waiver of the overpayment, which was denied

by SSA claims adjuster Daniel Sphabmixy. In February 2007, Bankoff called Sphabmixy

to complain about the denial and also left threatening phone messages for Sphabmixy,

who alerted his supervisor, Susan Tonik. Bankoff then called Tonik to apologize and

scheduled a meeting for March 9, 2007. On the morning of March 9, however, Bankoff

cancelled the meeting and left two threatening voicemails for Tonik, shouting “somebody

ought to spit in that bitch’s face, she doesn’t know how to talk to people . . . I will smack

the shit out of that bitch.” Tonik became “very worried and very scared.” That same

day, Bankoff also spoke with SSA claims representative Crystal Robinson, complaining

about Tonik and telling Robinson that he would come to the office, take the gun away

from “the pig up front,” and “slap every woman in the place.”

         In April 2007, a grand jury returned a three-count Indictment charging Bankoff

with threatening employees of the SSA, in violation of 18 U.S.C. § 115. Section

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115(a)(1)(B) provides, in relevant part:

       Whoever . . . threatens to assault, kidnap, or murder, a United States official, a
       United States judge, a Federal law enforcement officer, or an official whose killing
       would be a crime under [18 U.S.C. § 1114], with intent to impede, intimidate, or
       interfere with such official, judge, or law enforcement officer while engaged in the
       performance of official duties, or with intent to retaliate against such official,
       judge, or law enforcement officer on account of the performance of official duties,
       shall be punished as provided in subsection (b).

18 U.S.C. § 115(a)(1)(B).

       Throughout the proceedings, numerous psychiatric evaluations and hearings were

held to determine whether Bankoff was competent to stand trial and whether he should be

allowed to represent himself. At a pretrial hearing on March 17, 2008, the District Court

found Bankoff competent to stand trial and able to represent himself. Although Bankoff

had repeatedly requested to proceed pro se, he changed his mind before and during trial,

which resulted in him being represented by counsel at times and at other times

representing himself with counsel on standby.

       The jury found Bankoff guilty of threatening Tonik (Count Two) and Robinson

(Count Three) but acquitted him of threatening Sphabmixy (Count One). The District

Court granted Bankoff’s motion for judgment of acquittal as to Count Three, finding that

Robinson was not an “official” within the meaning of the statute. The District Court

varied upward from the applicable Guidelines range and sentenced Bankoff to 60

months’ imprisonment, to be followed by a three-year term of supervised release.

       The parties cross-appealed. We analyzed the proper interpretation of “official,”

concluded that the District Court erred in granting a judgment of acquittal as to Robinson,

and vacated the District Court’s judgment on Count Three. We affirmed the denial of a

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judgment of acquittal as to Tonik on Count Two, rejected Bankoff’s Sixth Amendment

claim, and remanded the case for further proceedings.

         On remand, the District Court denied Bankoff’s motion to revisit his competency

to stand trial, noting that the issue was beyond the scope of remand because it had not

been raised on appeal. At the resentencing hearing on October 27, 2011, after argument

and a lengthy colloquy, the District Court found that Bankoff was competent to proceed

to resentencing. Though counsel was present, Bankoff insisted on representing himself

and was permitted to present his arguments. The District Court found the evidence

sufficient to sustain a conviction on Count Three, rejected Bankoff’s challenge to a three-

level enhancement based on the victims’ official status, and considered the 18 U.S.C. §

3553(a) factors. The District Court noted that Bankoff’s Guidelines range was higher

than at the original sentencing but failed to calculate the revised range on the record. The

District Court announced its intention to impose the same sentence despite the revised

range and ultimately imposed the same 60-month sentence of imprisonment, to be

followed by three years of supervised release, to run concurrently on Counts Two and

Three.

         Bankoff appealed.

II.      Discussion

         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We review de novo

whether the District Court properly interpreted and applied our mandate. See Kilbarr

Corp. v. Bus. Sys. Inc., 990 F.2d 83, 87-88 (3d Cir. 1993). We address in turn each of the

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five issues Bankoff, proceeding pro se, raises on appeal.

       A.     Competency at Trial

       Bankoff argues that the District Court erred by refusing on remand to revisit the

issue of his competency to stand trial. In his first appeal, Bankoff did not challenge the

District Court’s finding that he was competent to stand trial. Because the issue could and

should have been raised in his first appeal, Bankoff failed to preserve the issue for

review. See United States v. Pultrone, 241 F.3d 306, 307-08 (3d Cir. 2001); see also

United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (explaining failure to identify

or argue an issue in opening brief constitutes waiver of that issue on appeal). Moreover,

the issue of Bankoff’s competency was not within the scope of remand, which was

limited to consideration of the outstanding sufficiency challenge to Count Three and

resentencing. We are thus without jurisdiction to review the argument now. See

Pultrone, 241 F.3d at 308.

       B.     Competency at Resentencing

       Bankoff further argues that the District Court erred by finding him competent to

proceed to resentencing.1 We review the District Court’s ruling on the necessity of a

competency hearing de novo and its factual findings regarding competency for clear

error. United States v. Leggett, 162 F.3d 237, 241 (3d Cir. 1998). A criminal defendant

shall be subjected to a competency hearing “if there is reasonable cause to believe that


       1
         Bankoff also claims that the District Court erred by allowing him to represent
himself at resentencing when he had not requested to do so. That claim is clearly belied
by the record, which shows that Bankoff repeatedly asked to represent himself, and thus
we decline to address it.
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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 this fact-intensive inquiry, the District Court considers a number of

factors, including “evidence of a defendant’s irrational behavior, his demeanor at trial,

and any prior medical opinion on competence to stand trial.” Leggett, 162 F.3d at 242.

       It is clear from the record that the District Court did not err in determining that

Bankoff was competent to proceed with resentencing. The District Court was already

familiar with the numerous materials presented at the prior competency hearing, during

which it found Bankoff competent to stand trial. In preparation for the hearing on

October 27, 2011, the District Court reviewed recent psychological reports prepared by

the Bureau of Prisons staff, which stated that Bankoff’s current mental status and

behavior did not suggest significant mental health problems. During the hearing, the

District Court conducted a lengthy colloquy with Bankoff, who correctly and intelligently

answered questions about the proceedings, presented coherent and logical arguments

regarding his motion for judgment of acquittal and in favor of a more lenient sentence,

and corrected the District Court when it mistakenly identified the prosecutor at trial as the

defense counsel. The District Court thus properly concluded that Bankoff was “very

competent” and demonstrated a “very high degree of knowledge” about the proceedings.




                                              6
       C.     Sufficiency of the Evidence

       Bankoff contends that no reasonable jury could find him guilty on Count Three.2

For a sufficiency of the evidence claim, we “view the evidence in the light most favorable

to the government and must sustain a jury’s verdict if a reasonable jury believing the

government’s evidence could find beyond a reasonable doubt that the government proved

all the elements of the offenses.” United States v. Rosario, 118 F.3d 160, 163 (3d Cir.

1997) (internal quotations omitted). This places “a very heavy burden” on appellant. Id.

       In support of his motion for a judgment of acquittal, Bankoff argued before the

District Court that the evidence was insufficient to establish that his conduct constituted a

“true” threat against Robinson or that he acted with the requisite intent. Based on the

record, we conclude that a rational juror could find beyond a reasonable doubt that

Bankoff’s statements constituted a threat to Robinson and that Bankoff acted with the

intent to impede, intimidate, or interfere with Robinson with respect to the performance

of her official duties. We thus affirm the District Court’s denial of the motion for

judgment of acquittal on Count Three.

       D.     Resentencing

       Bankoff contends—and the government concedes—that the District Court

procedurally erred by failing to determine his revised Guidelines range at the

       2
          Bankoff also argues that the evidence is insufficient as to Count Two because
exculpatory evidence shows he is innocent. Bankoff previously challenged the District
Court’s denial of his motion for judgment of acquittal on Count Two solely on the basis
of the interpretation of “official” within the meaning of the statute, and we affirmed his
conviction on that count. Bankoff, 613 F.3d at 372. To the extent that Bankoff now
attempts to raise a different insufficiency argument, he has waived it. See Pultrone, 241
F.3d at 308.
                                              7
resentencing hearing. We agree. See Gall v. United States, 552 U.S. 38, 51 (2007)

(listing the failure to calculate the Guidelines range as a significant procedural error).

This type of error typically requires reversal but, under limited circumstances, can be

harmless. United States v. Langford, 516 F.3d 205, 215 (3d Cir. 2008). “For the error to

be harmless, it must be clear that the error did not affect the district court’s selection of

the sentence imposed.” Id. (citing Williams v. United States, 503 U.S. 193, 203 (1992)).

“[T]he record must be unambiguous that the miscalculation of the range had no effect and

that the sentencing judge would have imposed the same sentence under a correct

Guideline range.” United States v. DeMuro, 677 F.3d 550, 569 (3d Cir. 2012) (internal

quotation marks and citation omitted).

         Remand is unnecessary here because the District Court’s error was harmless.

While Bankoff’s applicable Guidelines range rose to 51 to 63 months, from 41 to 51

months, it is clear from the record that the District Court never intended to impose a

higher penalty than the 60 months originally imposed. Because Bankoff would have

received the same sentence even if the District Court had calculated the new Guidelines

range, this error was harmless. We thus affirm the sentence imposed by the District

Court.

         E.     Ineffective Assistance of Counsel

         Ineffective assistance of counsel claims should ordinarily be raised in a collateral

proceeding rather than on direct appeal. See Massaro v. United States, 538 U.S. 500,

504-05 (2003); United States v. Thornton, 327 F.3d 268, 271-72 (3d Cir. 2003) (deferring

such claims to a collateral attack unless the record on direct appeal is sufficient to allow

                                               8
determination of the issue). Because the record before us is insufficient, we decline to

address Bankoff’s allegations. Any claim that Bankoff may have based on ineffective

assistance of counsel must be raised under the provisions of 28 U.S.C. § 2255.

III.   Conclusion

       For the foregoing reasons, we will affirm the judgment of conviction and the

sentence entered by the District Court.




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