                                                                           FILED
                              NOT FOR PUBLICATION                           NOV 19 2009

                                                                        MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                    U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 05-50221

                Plaintiff - Appellee,             D.C. No. 02-CR-331-DOC

  v.
                                                  MEMORANDUM *
LEIGH-DAVIS GLASS,

                Defendant - Appellant.



                      Appeal from the United States District Court
                         for the Central District of California
                       David O. Carter, District Judge, Presiding

                        Argued and Submitted November 2, 2009
                                 Pasadena, California

Before: GOULD and BEA, Circuit Judges, and MOLLOY, ** District Judge.

       Leigh-Davis Glass appeals her conviction and sentence for two counts of

making a false declaration in court proceedings, two counts of bank fraud, and one

count of bankruptcy fraud. She appeals the District Court’s decision to allow her


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **     The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
to represent herself, the application of a 12-level sentencing enhancement for the

loss amount, and the imposition of restitution.

      The District Court was correct in allowing Glass to exercise her right to

self-representation. A criminal defendant has the right to waive representation by

counsel and to represent herself. Faretta v. California, 422 U.S. 806, 807 (1975).

Whether a defendant is competent to exercise the right to self-representation is

determined by the same standard as whether a defendant is competent to stand trial.

Godinez v.Moran, 509 U.S. 389, 396, 401 (1993). Nonetheless, a court may deny a

defendant the right to self-representation when the defendant, though competent to

stand trial, suffers from a “severe mental illness.” Indiana v. Edwards, ___ U.S.

___, 128 S. Ct. 2379, 2387–88 (2008). Following Edwards, under different facts,

this Court has remanded a case to allow a trial court to determine if it would have

required a self-represented, mentally ill defendant to have counsel, in light of the

Edwards decision, where the trial court’s threshold Faretta ruling relied on the

defendant’s “absolute legal right” to self-representation. United States v.

Ferguson, 560 F.3d 1060, 1063–64 (9th Cir. 2009).

      Here, the District Court conducted at least three separate Faretta inquiries

during which the judge discussed with Glass her education, her capabilities, and

her desire to represent herself. While the District Court expressed concern about


                                           2
Glass’ hostility and irrational behavior, it balanced this concern against her desire

to represent herself and her educational background. Glass graduated from law

school. No party ever questioned Glass’ competence to stand trial, and the District

Court did not have evidence to suggest Glass suffered from a severe mental illness.

Additionally, the District Court made findings, supported by the record, that Glass’

competence was not impaired at the trial, but that she was engaging in delay

tactics. Remand is not warranted under Ferguson because the District Court judge

balanced his observations of Glass’ behavior against her right to self-

representation, instead of basing his decision on an “absolute” right to self-

representation. Cf. Ferguson, 560 F.3d at 1063–64. Further, the District Court

judge explained that, in his opinion, Glass was “quite capable, quite

knowledgeable, and [was] obstructing the process” and that he was “absolutely

convinced . . . [Glass was] quite capable of defending [herself].” The District

Court correctly allowed Glass to represent herself in these proceedings.

      The District Court was not mistaken when it applied a 12-level enhancement

to Glass’ Guidelines range for intended loss of greater than $200,000. For

purposes of determining the offense level, the loss amount is the greater of actual

loss or intended loss. U.S.S.G. § 2B1.1, cmt. n. 2(A) (2001). Loss may be reduced

by pledged collateral. Id. at cmt. n. 2(E)(ii). In calculating intended loss, intended


                                           3
loss is not necessarily reduced by the value of pledged collateral, but the collateral

may be considered in determining the defendant’s intent. United States v.

McCormac, 309 F.3d 623, 629 (9th Cir. 2002). The District Court found Glass did

not intend to repay the loan because she had used a false name, she made only one

nominal payment, and she continued to challenge the bank’s right to foreclose on

the property at the time of sentencing. Therefore, under McCormac, the District

Court correctly declined to credit the collateral against the intended loss amount.

      Last, the District Court did not abuse its discretion when it ordered Glass to

pay restitution to the defrauded bank, despite evidence the bank had recovered the

funds through a foreclosure proceeding. While a district court has broad discretion

to award restitution, the restitution amount must reflect collateral already received

by a victim. United States v. Smith, 944 F.2d 618, 625–26 (9th Cir. 1991). The

District Court’s oral judgment was explicit that Glass would not be required to pay

restitution if the loss was satisfied through the foreclosure. However, the written

judgment does not reflect this fact. To ensure clarity, the case is remanded so the

District Court can amend the written judgment to reflect the oral pronouncement

that Glass need not pay restitution if the bank received the full amount of the

fraudulently obtained mortgage from the foreclosure sale. See United States v.

Orlando, 553 F.3d 1235, 1240 (9th Cir. 2009).


                                           4
     AFFIRMED and REMANDED for the limited purpose of conforming

the written judgment to the oral judgment announced at sentencing.




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