                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2007

USA v. Batista
Precedential or Non-Precedential: Precedential

Docket No. 05-2949




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                                          PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 05-2949


         UNITED STATES OF AMERICA

                           v.

         BRAULIO ANTONIO BATISTA,

                                Appellant


   On Appeal from the United States District Court
            for the District of New Jersey
              (D.C. No. 03-cr-00514-1)
     District Judge: Honorable John C. Lifland


     Submitted Under Third Circuit LAR 34.1(a)
                 March 30, 2007

Before: FISHER, JORDAN and ROTH, Circuit Judges.

               (Filed: April 25, 2007 )
George S. Leone
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102

Glenn J. Moramarco
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street, 4th Floor
P.O. Box 2098
Camden, NJ 08101
       Attorneys for Appellee

Robert Little
515 Valley Street, Suite 170
Maplewood, NJ 07040
      Attorney for Appellant




                  OPINION OF THE COURT


FISHER, Circuit Judge.

       This case presents a novel question regarding whether
feigning mental illness is an appropriate basis for an obstruction
of justice enhancement under the United States Sentencing
Guidelines. We hold that it is.



                                2
        After pleading guilty to a charge of conspiracy to
distribute 150 grams or more of crack cocaine, Braulio Antonio
Batista was sentenced to a 188-month term of imprisonment.
Batista now appeals that sentence, claiming that the District
Court erred by granting a two-level enhancement for obstruction
of justice, failing to grant a reduction for acceptance of
responsibility, failing to grant a downward departure based on
significantly reduced mental capacity, and failing to apply the
“safety valve” provision of the Sentencing Guidelines. Batista
also argues that his sentence was unreasonable under the factors
set out in 18 U.S.C. § 3553(a). For the reasons set forth below,
we will affirm the District Court’s judgment of sentence.

                               I.

       Batista was arrested on September 19, 2002, for his
involvement in the sale of approximately 450 grams of crack
cocaine.1 Batista had served as the middle-man during the sale
between a confidential informant and the seller, Liroy Batista-
Avila. Batista was assisted by Antonio Arias-Campos, who had
a minimal role in the sale.

       Not long after an unsuccessful proffer session with the
government, Batista’s attorney requested an evaluation of
Batista to determine if he was competent to stand trial. Over the
course of the next two years, Batista was evaluated on at least
five occasions.


       1
        As indicated, Batista pled to possessing only 150 grams
of crack cocaine.

                               3
       Batista was initially evaluated by Dr. Susan Barber, who
found that Batista was likely not competent to stand trial, and
Dr. William Ryan, who initially agreed with Dr. Barber, but
suggested that such a finding was possibly the result of
malingering by Batista. Dr. Ryan’s report indicated that Batista
had been administered a test that examined a patient’s memory.
Patients suffering from severe brain damage could generally
answer at least six of the fifteen questions included on the test.
Batista answered only two correctly, indicating malingering of
memory problems.

        Following this report by Dr. Ryan, the government
requested further testing to determine if Batista was feigning his
symptoms.      Dr. Steven Simring interviewed Batista and
concluded that Batista was simulating mental illness. His report
stated that Batista was “faking or exaggerating psychiatric
symptoms in order to avoid going to trial.” Dr. Ryan also
interviewed Batista again. Based on this second interview, Dr.
Ryan concluded that Batista was probably malingering and was
competent to stand trial. Dr. Ryan’s report noted that Batista
“attempted to feign mental illness by refusing to sit in a chair
which he claimed was occupied by his imaginary friend, by
claiming that he was in his home with his mother waiting
upstairs, and by miming the retrieval of an imaginary beverage
from an imaginary refrigerator,” and then offering Dr. Ryan a
sip.

      By court order, a final examination was performed by Dr.
Joel Morgan, a neuropsychologist who was chosen by Batista.
Following his interview with Batista, Dr. Morgan agreed with
the previous doctors’ conclusions, finding that he was

                                4
malingering. Dr. Morgan found that the evaluation presented
“significant, incontrovertible and overwhelming evidence
regarding the presence of suboptimal effort and malingering in
the part of the examinee . . . consistent with a picture of what
might be phrased as ‘unsophisticated malingering.’” Based on
all of these examinations, the District Court found Batista
competent to stand trial. Following this determination, Batista
pleaded guilty to one count of conspiracy to distribute 150
grams or more of crack cocaine.

        Batista was sentenced on June 2, 2005. At the time of his
sentencing, the government made a motion for a two-level
enhancement for obstruction of justice based on Batista’s
attempts to avoid trial by feigning mental illness. Batista
opposed this motion and made his own motion for a reduction
in his base offense level based on acceptance of responsibility.
In addition to the reports discussed above, the government also
offered the testimony of Agent Steven Sutley to support its
position. Agent Sutley testified that Arias-Campos told Agent
Sutley that Batista had informed him that he would be feigning
mental illness to try to avoid standing trial. Agent Sutley also
testified that Batista-Avila told him that Batista was purposely
not taking his medication to increase his chances of being found
incompetent.

       Based on this evidence, the District Court expressly
found that Batista had feigned mental illness to avoid trial, had
transmitted his plan to feign mental incompetence to Arias-
Campos, and had chosen to not take his medication so as to
increase his chances of being found incompetent. In addition,
while the District Court found that Batista had shown some

                               5
acceptance of responsibility by admitting his guilt and initially
trying to cooperate with the authorities, this was counteracted by
Batista’s later attempts to avoid trial by feigning mental
incompetence. Based on these findings, the District Court
granted the government’s motion for a two-point enhancement
for obstruction of justice and denied Batista’s motion for a
three-level reduction for acceptance of responsibility.2

       The District Court also denied Batista’s motion for a
downward departure based on significantly reduced mental
capacity, finding that any mental problems Batista may have had
did not affect his culpability in the cocaine conspiracy.
Therefore, the District Court found that Batista had a base
offense level of 36, placing his advisory Guidelines range
between 188 and 235 months. The District Court then allowed
counsel for both sides to argue for the appropriate sentence
based on the § 3553(a) factors. During that time, Batista’s
counsel focused heavily on the fact that Batista’s
co-conspirators had received sentences of 63 and 27 months
respectively. In its final decision, the District Court found that
the disparity between Batista’s sentence and those of his
co-conspirators was warranted and that a sentence of 188
months was appropriate under the circumstances.

       Batista timely filed this appeal.


       2
        The District Court denied the government’s motion for
an enhancement based on an aggravating role, finding that
Batista was not a leader or organizer. That determination has
not been appealed.

                                6
                                II.

       The District Court exercised jurisdiction over this case
pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary
review over a district court’s interpretation of the Guidelines,
reviewing its factual determinations for clear error. United
States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc). We
review a district court’s ultimate determination of a sentence for
reasonableness. United States v. Cooper, 437 F.3d 324, 326-27
(3d Cir. 2006).

                               III.

       Batista’s primary contentions on appeal center on the
District Court’s determination of his base offense level under
the Sentencing Guidelines. We will address each alleged error
individually.

                                A.

        Under the United States Sentencing Guidelines, a district
court may enhance a defendant’s base offense level by two
levels if it determines that the defendant “willfully obstructed or
impeded, or attempted to obstruct or impede, the administration
of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction . . . .” U.S.
Sentencing Guidelines Manual § 3C1.1. On appeal, Batista
argues that the District Court improperly applied this
enhancement because Batista was merely “exploring a potential
defense or mitigation” when he was being evaluated. However,

                                7
the District Court found otherwise, indicating that Batista
knowingly feigned mental illness and shared his intent to use
this plan with Arias-Campos. We review such factual findings
for clear error, Grier, 475 F.3d at 570, overturning them only
where “‘the reviewing [body] on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.’” Id. (quoting Concrete Pipe & Prods. of Cal., Inc.
v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622
(1993)). Here, the District Court’s conclusion is supported by
ample evidence, including the testimony of Agent Sutley and the
reports of three independent doctors who found that Batista was
feigning mental illness.

        While we have not previously so held, several of our
sister circuits have found that a defendant’s feigning of mental
illness is sufficient grounds for the imposition of the obstruction
of justice enhancement pursuant to § 3C1.1. See United States
v. Greer, 158 F.3d 228, 238-39 (5th Cir. 1998) (finding that
obstruction enhancement was proper where defendant feigned
mental illness to avoid standing trial); United States v. Patti, 337
F.3d 1317, 1325 (11th Cir. 2003) (finding that obstruction
enhancement was proper where defendant feigned amnesia,
thereby postponing trial for nearly a year). In the case before us,
Batista’s feigned mental illness required substantial
expenditures of both government resources and the District
Court’s time.

        Contrary to Batista’s contention, allowing an obstruction
of justice enhancement based on feigned mental illness does not
chill a defendant’s ability to not stand trial if he is mentally
incompetent. It is clear that a sentencing enhancement cannot

                                 8
be applied in a way that violates a defendant’s constitutional
rights. It is equally well-established that the Due Process Clause
prevents a defendant from standing trial if that defendant is
mentally incompetent. However, these two facts do not
combine to prevent the imposition of an enhancement on a
defendant who feigns mental illness in order to avoid going to
trial. In United States v. Dunnigan, 507 U.S. 87 (1993), the
Supreme Court rejected similar arguments about an obstruction
enhancement based on a defendant’s perjured testimony at trial.
The Supreme Court found that while the Constitution protects
a defendant’s right to testify on his own behalf, those protections
do not go so far as to protect a defendant’s right to perjure
himself. Id. at 96. Therefore, allowing an enhancement based
on perjury did not chill a defendant’s constitutional rights.

        Based in part on Dunnigan, the Fifth Circuit similarly
rejected a defendant’s claim that allowing obstruction
enhancements based on feigned mental incompetence would
chill his right to have a competency hearing. “While a criminal
defendant possesses a constitutional right to a competency
hearing if a bona fide doubt exists as to his competency, he
surely does not have the right to create a doubt as to his
competency or to increase the chances that he will be found
incompetent by feigning mental illness.” Greer, 158 F.3d at
237. We agree. Further, we find it highly unlikely that a district
court would apply an obstruction enhancement as a matter of
course when a defendant requested a competency hearing and
was later found competent to stand trial. The enhancement
would be appropriate only in cases, like that presented here,
where the defendant feigns mental illness. Therefore, we find
no error in the District Court’s application of the enhancement.

                                9
                               B.

        Batista next contends that the District Court improperly
denied his motion for a reduction based on acceptance of
responsibility. Section 3E1.1 of the Sentencing Guidelines
provides: “If the defendant clearly demonstrates acceptance of
responsibility for his offense, decrease the offense level by 2
levels.” U.S. Sentencing Guidelines Manual § 3E1.1(a).3 When
reviewing a district court’s denial of acceptance of
responsibility, we afford the district court “great deference”
because “‘the sentencing judge is in a unique position to
evaluate a defendant’s acceptance of responsibility.’” United
States v. Boone, 279 F.3d 163, 193 (3d Cir. 2002) (quoting U.S.
Sentencing Guidelines Manual § 3E1.1 cmt. n.5).

       Batista rightly argues that the fact that he was given a
two-point increase for obstruction of justice did not, per se,
require the District Court to refuse his acceptance of
responsibility motion. As indicated in application note 4 to the
acceptance of responsibility Guideline, “[c]onduct resulting in
an enhancement under § 3C1.1 . . . ordinarily indicates that the
defendant has not accepted responsibility for his criminal
conduct. There may, however, be extraordinary cases in which
adjustments under both §§ 3C1.1 and 3E1.1 may apply.” Id. at
§ 3E1.1 cmt. n.1. See also United States v. Jenkins, 275 F.3d


       3
        If the defendant’s base level is 16 or greater and he has
timely entered a guilty plea, the defendant may be eligible for an
additional one-level reduction. U.S. Sentencing Guidelines
Manual § 3E1.1(b).

                               10
283, 286 (3d Cir. 2001) (relating district court’s choice to
increase defendant’s base offense level by two levels for
obstruction of justice and then reduce the base offense level by
three levels for acceptance of responsibility). However, Batista
has failed to carry his burden of establishing that the District
Court’s finding regarding the acceptance of responsibility
reduction was “without foundation.” United States v. Salmon,
944 F.2d 1006, 1128 (3d Cir. 1991).

        The District Court appropriately found that Batista had
shown some acceptance of responsibility by admitting his guilt
and initially trying to cooperate with authorities. However, it
also correctly found that this was counteracted by Batista’s later
attempts to prove that he was not responsible for his actions
based on mental incompetence. Batista’s actions went beyond
the mere exploration or presentation of a defense of mental
incompetence to the feigning of a mental illness in an attempt to
avoid facing trial or punishment for his crime. Batista’s false
representation of mental illness was sufficient for the District
Court to find that he had not accepted responsibility for his
action. Batista’s initial admission of guilt is not sufficiently
extraordinary to overcome the later behavior that led to the
obstruction of justice enhancement. U.S. Sentencing Guidelines
Manual § 3E1.1 cmt. n.4; United States v. McDowell, 888 F.2d
285, 292 n.2 (3d Cir. 1989) (holding that a defendant is not
entitled to a reduction of responsibility as a matter of right
simply because he pleaded guilty).

      As the District Court properly applied the obstruction
enhancement and denied the acceptance of responsibility


                               11
reduction, we find that it properly calculated Batista’s base
offense level.

                               IV.

        Batista next contends that the District Court erred in
failing to grant him a downward departure for significantly
reduced mental capacity pursuant to § 5K2.13. We have
previously held that discretionary departures are not reviewable
unless the District Court refused such a departure in violation of
law. United States v. M cKnight, 448 F.3d 237, 238 (3d Cir.
2006). Because Batista does not claim that the District Court
committed legal error by failing to understand its ability to grant
a downward departure, United States v. Jackson, 467 F.3d 834,
839 (3d Cir. 2006), but only that the District Court wrongly
rejected his arguments in support of his motion for a downward
departure, we are without jurisdiction to review his claim.4



       4
        Batista’s claim that the District Court erred by not
applying the “safety valve” provision of the Sentencing
Guidelines, U.S. Sentencing Guidelines Manual § 5C1.2, is
spurious. As an initial matter, Batista waived such an argument
by conceding that it did not apply at his sentencing hearing.
However, even if he had not waived the argument, § 5C1.2 only
applies to defendants when their advisory Guidelines range is
less than the mandatory minimum required by statute. Id.
Because Batista’s properly calculated Guidelines range was 188
to 235 months, well above the 120-month mandatory minimum
under 21 U.S.C. § 841, § 5C1.2 does not apply.

                                12
                               V.

        Finally, we reject Batista’s argument that his sentence
was unreasonable. In order to determine whether a district
court’s imposition of sentence was reasonable, we must first
satisfy ourselves that the district court correctly calculated the
defendant’s base offense level and ruled on any motions for
departure. Cooper, 437 F.3d at 330. As established by our
discussion above, there was no error in the District Court’s
computation of Batista’s base offense level and we may not
review its decision not to depart downward.

        Once we have satisfied ourselves that a district court has
properly determined the advisory Guidelines range, we must
next determine whether the district court considered the
remaining § 3553(a) factors and applied them appropriately to
the defendant’s case. Id. The question is not what sentence we
would have imposed, but whether, under the circumstances cited
by the District Court, the sentence imposed was logical and
consistent with the § 3553(a) factors. Id. (quoting United States
v. Williams, 425 F.3d 478, 481 (7th Cir. 2005)).

       Upon review of the record, we are satisfied that the
District Court appropriately considered the remaining § 3553(a)
factors. Id. The District Court heard Batista’s argument that his
sentence was inappropriate considering his co-conspirators,
Batista-Avila and Arias-Campos, had received sentences of 63
and 27 months respectively. The District Court found that the
disparity was warranted as both Arias-Campos and Batista-Avila
were operating under cooperation agreements and had benefitted
from reductions for substantial assistance and acceptance of

                               13
responsibility. Batista, on the other hand, had attempted to
avoid trial by feigning mental illness.

        The District Court also responded to Batista’s claim that
his history of mental illness should be taken into consideration.
The District Court admitted that, the feigning of mental
incompetence notwithstanding, Batista did have some history of
mental problems, and took that into consideration when
determining that he should receive a sentence at the low end of
the advisory Guidelines range. While it did not mention each
factor included in § 3553(a), we are confident that the District
Court took the factors into consideration when making its
determination. Cooper, 437 F.3d at 329 (“Nor must a court
discuss and make findings as to each of the § 3553(a) factors if
the record makes clear the court took the factors into account in
sentencing.”) (citing Williams, 425 F.3d at 480). Therefore, we
find that Batista’s sentence was reasonable.

                              VI.

       For the reasons stated above, we will affirm the District
Court’s judgment of sentence.




                               14
