                                                                             FILED
                                                                              JAN 07 2013
                               FOR PUBLICATION                           MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPEALS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                          No. 10-50631

              Plaintiff - Appellee,                D.C. No. 5:08-cr-00041-VAP-1
                                                   Central District of California,
  v.                                               Riverside

JOEL STANLEY DREYER,
                                                   ORDER
              Defendant - Appellant.



Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

       The opinion and dissent filed August 21, 2012 are withdrawn. A

superseding opinion and dissent was circulated to the Court on October 12, 2012

and is being filed concurrently with this order.

       After the superseding opinion and dissent was circulated, a judge sua sponte

requested a vote on whether to rehear the matter en banc. Although no petition for

rehearing or petition for rehearing en banc was filed, the parties were given notice

of the superseding opinion and dissent and permitted the opportunity to state their

positions on whether the matter should be reheard en banc. The matter failed to
receive a majority of the votes of the nonrecused active judges in favor of en banc

reconsideration. F ED. R. A PP. P. 35.

      No future petition for rehearing or petition for rehearing en banc will be

entertained. The clerµ is directed to issue the mandate forthwith.




      Judge Callahan would have the mandate issue after seven days as generally

provided by Federal Rule of Appellate Procedure 41(b).
                                                                               FILED
United States v. Dreyer, No. 10-50631                                           JAN 07 2013

                                                             MOLLY C. DWYER, CLERK
Circuit Judge TALLMAN, with whom Chief Judge KOZINSKI and Circuit O U R T OF APPEALS
                                                              U .S. C

Judges O'SCANNLAIN, BYBEE, CALLAHAN, BEA, IKUTA, and N.R.
SMITH join, dissenting from the denial of rehearing en banc:
      By failing to taµe this case en banc we have made a hash of the plain error

standard. Under the guise of a plain error review, the majority has conducted a de

novo analysis, concluding that the district court plainly erred by not sua sponte

ordering a competency hearing prior to sentencing. The majority's decision is not

only irreconcilable with our prior precedents, it also will wreaµ havoc on

sentencing proceedings. In the waµe of this decision, district judges may feel

compelled to order a competency hearing any time a defendant suffers from a

medical condition and, as a result, cannot 'expres[s] himself appropriately or in a

manner that could assist in his defense.' United States v. Dreyer, 693 F.3d 803,

813 (9th Cir. 2012).

      Federal courts nationwide pronounced 86,000 sentences in 2011; 21,000 of

these sentences were pronounced in the Ninth Circuit alone. United States

Sentencing Commission, Statistical Information Pacµet 3 tbl. 2 (2011).

Defendants with medical and psychological deficiencies that prevent or impair

their ability to allocute are not infrequently sentenced, and district courts, quite

properly, do not routinely conclude that such impairments rise to the level of legal

incompetence. The Dreyer opinion affords no deference to district courts, which

                                            1
are uniquely qualified to evaluate competency at sentencing, and will only result in

unnecessary and expensive evaluations, hearings, resentencings, and remands

when evidence of legal incompetence is limited or absent.

      To justify its conclusion, the majority relies on a distorted interpretation of

the facts and a tortured construction of existing precedent. The majority finds

plain error even though three doctors opined that Dreyer was competent to plead

guilty, and even though no evidence suggested that Dreyer's mental condition had

deteriorated after he was last found competent, and even though neither party

suggested a need for a competency evaluation prior to sentencing, and even though

Dreyer's behavior in court did not suggest the need for further evaluation. In

vacating Dreyer's sentence, the majority has improperly substituted its judgment

for that of the district court, resulting in an opinion that will undermine the finality

of any number of properly imposed sentences.

                                            I

      The record does not support the majority's ruling that the district court's

failure to sua sponte conduct a competency hearing constituted plain error. The

district court's omission would only be error if, in light of the information

contained in the record, a reasonable judge would have experienced genuine doubt

regarding the defendant's competence. United States v. Marµs, 530 F.3d 799, 814



                                            2
(9th Cir. 2008). In determining whether such doubt exists, we must consider the

following factors: 'the defendant's irrational behavior, his demeanor in court, and

any prior medical opinions on his competence.' Id. (internal quotation marµs

omitted). None of these factors support the majority's conclusion that there was

'substantial evidence' sufficient to raise a genuine doubt that Dreyer was

incompetent to be sentenced. Id. (internal quotation marµs omitted).

      Three reports compiled by four medical experts each concluded that Dreyer

suffered from early stage frontotemporal dementia. None opined that Dreyer's

medical condition rendered him legally incompetent. Instead, the doctors

expressly found that Dreyer's dementia did not 'cause[] him to be unaware of the

nature and consequences of his behavior, or that what he was doing was wrong,'

that Dreyer's 'cognitive sµills were intact,' and that Dreyer was 'competent to

plead guilty.' Dreyer, 693 F.3d at 816 (Callahan, J., dissenting) (internal quotation

marµs omitted).

      Furthermore, as Dreyer concedes, he 'did not manifest any observable signs

of incompetency during the sentencing hearing.' Id. at 817. He responded to the

district court's inquiries in a coherent and respectful manner, and appeared to

interact with his attorneys thoughtfully and to respond appropriately to evidence

introduced against him. Although Dreyer declined to participate in allocution, this



                                          3
decision does not necessarily evidence incompetence, but rather is merely one

factor that must be evaluated when considering whether Dreyer could 'understand

the nature and consequences of the proceedings against him [and] to assist properly

in his defense.' 18 U.S.C. y 4241(a).

      The district court was fully aware that Dreyer suffered from a medical

disorder that at times impaired his inhibition and insight. The district judge

reviewed the expert reports evaluating Dreyer's mental health, considered Dreyer's

medical condition in calculating an appropriate sentence, and personally observed

Dreyer's behavior in court. In finding plain error, the majority disregarded the

district court's assessment of a fact-intensive competency inquiry, which is

necessarily informed by the judge's personal perception of Dreyer's behavior at

sentencing. On this record, the alleged failure to order a competency evaluation

was not an 'error that is so clear-cut, so obvious' that no competent district judge

would have imposed sentence in its absence. United States v. Turman, 122 F.3d

1167, 1170 (9th Cir. 1997). As a result, the majority's conclusion that the district

court committed plain error is not defensible.

                                          II

      The majority's conclusion is a significant expansion of existing precedent,

under which we have found plain error only when the quality and magnitude of



                                          4
mental health evidence far exceeded what has been presented in this case. The

evidence of Dreyer's mental deficiencies does not begin to approximate the record

of delusional psychosis and brain damage suffered by the defendants in United

States v. Duncan, 643 F.3d 1242 (9th Cir. 2011), and Odle v. Woodford, 238 F.3d

1084 (9th Cir. 2001).

      In Duncan, we held that the district court erred in failing to order a

competency hearing before imposing sentence. In that case, three experts

concluded that the defendant suffered from delusions and was incompetent to

represent himself, MRI and PET scans showed 'an unusual brain structure

consistent with behavioral deficits in the ability to maµe rational plans and

modulate emotions,' and defense counsel expressed genuine concern regarding the

defendant's competency. Duncan, 643 F.3d at 1249 (internal quotation marµs

omitted).

      In Odle, we found error after noting that the defendant suffered

severe trauma requiring the removal of a grapefruit-sized portion of his brain,

attempted suicide, and was committed to psychiatric wards three times in as many

years. Odle, 238 F.3d at 1088-89. Medical reports and expert evaluations

evidenced that the defendant had an 'organic brain disorder,' experienced

hallucinations, 'seemed confused,' and 'beat his head against the wall.' Id. Given



                                           5
the defendant's lengthy medical history demonstrating severe mental impairments,

we found that: 'Where a petitioner has suffered massive trauma to his brain and

subsequently exhibits psychotic behavior, some of it while awaiting trial, an

inquiry into whether he possesses the mental acuity to participate in the

proceedings is the reasonable and appropriate course of action.' Id. at 1089.

      None of the expert reports evaluating Dreyer's mental state identify any

symptoms, diagnoses, or conditions that rise to the level of mental impairment

evidenced in Duncan or Odle. Instead, the experts' conclusions support a finding

that Dreyer was competent to be sentenced. Defense counsel's statements at

sentencing do not alter this analysis. Counsel informed the court that Dreyer

would not allocute due to his frontotemporal dementia, which might cause him to

'speaµ inappropriately,' 'maµe denials,' or 'not accept responsibility.' Dreyer,

693 F.3d at 807 (majority opinion). These statements were fully consistent with

the district court's prior understanding of Dreyer's impaired verbal, behavioral,

and impulse control, and should not have created any further doubt as to Dreyer's

competency to be sentenced. Absent further medical evidence of impaired

comprehension, it was inappropriate under plain error review for the panel majority

to declare that a reasonable jurist would have a genuine doubt as to Dreyer's

competency.



                                          6
                                           III

      The majority's conclusion cannot be reconciled with our prior cases in

which we held that plain error was not established. As the dissent accurately notes,

when a 'defendant has a medical or mental health condition that may affect the

brain but does not interfere with the defendant's ability to rationally consult with

his attorney and understand the proceedings, this Court has not found sufficient

evidence of incompetenc[y]' to support a finding of plain error. Id. at 820

(Callahan, J., dissenting) (emphasis added).

      For example, in United States v. White, 670 F.3d 1077, 1084-85 (9th Cir.

2012), we found that 'a reasonable judge [would not have] a bona fide doubt' as to

the defendant's competency, even though the defendant exhibited outbursts in

court and his attorneys indicated that he may suffer from delusions. In United

States v. Mendez-Sanchez, 563 F.3d 935, 940-41, 948 (9th Cir. 2009), we

concluded that the district court did not plainly err in failing to sua sponte order a

competency hearing, despite evidence that the defendant behaved irrationally and

experienced difficulties communicating with his counsel.

      The majority attempts to distinguish these cases, concluding that neither

involved a defendant with a 'diagnos[ed] . . . medical disorder bearing on the

defendant's mental state.' Dreyer, 693 F.3d at 812 (majority opinion). However,



                                           7
this distinction misses the point. The sole inquiry must be whether the defendant

was incapable of comprehending the proceedings or rationally communicating with

counsel. See 18 U.S.C. y 4241(a). The impact of a medical condition on a

defendant's mental state is irrelevant unless the identified deficiencies interfere

with the defendant's ability to consult with his attorney or understand the

proceedings.

                                             IV

       The majority assigns improper weight to the fact that Dreyer chose not to

allocute. In doing so, the majority adds to the existing standard of legal

competence by requiring that the defendant be able to speaµ persuasively on his

own behalf at sentencing. See United States v. Fernandez, 388 F.3d 1199, 1251

(9th Cir. 2004). According to the majority opinion, '[c]ompetenc[y] at sentencing

therefore requires . . . that the defendant be able to . . . participat[e] in his

'elementary right' of allocution.' Dreyer, 693 F.3d at 809. We have never held

that a defendant's election not to allocute, even if compelled by a medical or

physical condition, is alone sufficient to require a competency hearing. Unable to

rely on prior precedent, the majority manufactures a new competency standard out

of whole cloth.

       The majority's opinion suggests that a district court must sua sponte conduct



                                              8
a competency hearing anytime a defendant declines to speaµ at sentencing because

of a 'diagnose[d] . . . medical disorder affecting the defendant's mental condition.'

Dreyer, 693 F.3d at 812. This quoted language necessarily encompasses a wide

range of potential psychological and mental impairments. Nothing in the

majority's opinion limits its impact to defendants who have organic causes for

their mental impairment or degenerative diseases that have a clear effect on the

structure of their brain. Without further guidance, a district court may rationally

conclude that it must sua sponte order a hearing when any number of impairments

are identified. This result imposes a substantial burden on district courts and will

only unnecessarily complicate sentencing proceedings.

                                           V

      The district court did not commit plain error, defined as an 'error that is so

clear-cut, so obvious,' that no 'competent district judge' would maµe such a

mistaµe, even 'without the benefit of objection.' Turman, 122 F.3d at 1170.

The majority's decision cannot be reconciled with our prior precedents, under

which we have found plain error only when the quality and magnitude of mental

health evidence far exceeded what has been presented in this case. In their place,

the majority has crafted an opinion that alters the existing standard for legal

competence, fails to accord adequate respect for district courts charged with



                                           9
conducting sentencing proceedings, and undermines the finality of properly

imposed criminal sentences. In light of the substantial medical evidence already

available to the district court, there was no error seriously affecting the fairness,

integrity, or reputation of the sentencing proceedings.

      District courts now face the real risµ of reversal for declining to act when

neither party suggests there is a competency concern but the defendant elects not to

allocute for medical reasons. Applying the majority's opinion, reversal will be

required even though the defendant's condition does not impact the defendant's

ability to understand the sentencing proceedings or to rationally communicate with

counsel. In attempting to comply with this misguided decision, district courts are

left to navigate the shoals of Scylla and Charybdis. The Court should have voted

to rehear this case en banc to remove this hazard to navigation.




                                           10
                                                                              FILED
                               FOR PUBLICATION                                 JAN 07 2013

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




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 10-50631

              Plaintiff - Appellee,               D.C. No. 5:08-cr-00041-VAP-1

  v.
                                                  OPINION
JOEL STANLEY DREYER,

              Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Virginia A. Phillips, District Judge, Presiding

                      Argued and Submitted February 8, 2012
                               Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

                  Opinion by Judge REINHARDT, Circuit Judge:




       At the age of 63, Joel Dreyer experienced the onset of frontotemporal

dementia, a degenerative brain disorder that causes changes in personality and

behavior, impairs social interactions, and causes disinhibition and a loss of insight

and impulse control. He was a practicing psychiatrist at the time. From the age of
66 to 69, despite having no criminal history, Dreyer participated in a conspiracy to

distribute controlled substances, and in December 2010, at the age of 73, he was

sentenced to ten years imprisonment after he pleaded guilty to charges related to

that conspiracy.

      At the sentencing hearing, the district court was provided with three expert

reports: all three diagnosed Dreyer with frontotemporal dementia and noted that he

exhibited textbooµ manifestations of the condition since its apparent onset in 2001,

three years before his participation in the controlled substance conspiracy, and that

his symptoms persisted into the present. Dreyer did not allocute at sentencing and

defense counsel informed the court that his client would not address it due to the

dementia's effect on his behavior. Defense counsel did not move for a competency

hearing and the district court did not order a hearing sua sponte. The court

sentenced Dreyer to 120 months. Dreyer appeals his sentence, contending that the

district court erred by failing sua sponte to order an evidentiary hearing to

determine his competency at the time of sentencing.

      We hold that the record before the district court at sentencing was sufficient

to cause a genuine doubt as to the defendant's competence and that the court

committed plain error by failing to order a hearing sua sponte. Accordingly, we




                                           2
vacate Dreyer's sentence and remand for the district court to evaluate Dreyer's

competency on the basis of an evidentiary hearing.

                                  BACKGROUND

      Dreyer experienced a medical emergency in 2001 that coincided with the

onset of frontotemporal dementia. Immediately after being released from the

hospital, Dreyer's family noticed significant changes in his personality and

behavior. Within a few years Dreyer ended his previously-happy marriage to his

wife of 17 years, engaged in uncharacteristic behavior and withdrew from his

family to such a degree that friends and relatives concluded that he was exhibiting

early signs of dementia.1 Despite the family's concerns, his illness remained

undiagnosed. In 2004, the 66-year-old Dreyer, a licensed psychiatrist, began

providing prescriptions of oxycodone and hydrocodone to patients outside of the

usual course of professional practice. In 2007 Dreyer was indicted on charges

related to his participation in a conspiracy to possess and to distribute controlled


      1
        Dreyer's family recounted a number of instances in which he behaved in
ways that starµly contrasted with his pre-onset behavior. Among them was an
instance when Dreyer appeared wearing dress slacµs and nude from the waist up in
the lobby of an expensive hotel to meet with his daughter and a family friend. His
daughter also described Dreyer as behaving 'detached and aloof' at her younger
son's bar mitzvah, going so far as to read a newspaper in the temple while his
grandson gave his speech. This was a marµed contrast from her first son's bar
mitzvah, at which the defendant 'was engaged, singing [and] shedding tears of
joy.'

                                           3
substances. Although Dreyer had difficulty recognizing or admitting that his

actions were inconsistent with professional standards of conduct, he nonetheless

pleaded guilty in September 2009 to two counts of the thirty count indictment.

      Prior to sentencing, Dreyer submitted three different expert reports to the

court, all of which diagnosed him as suffering from frontotemporal dementia.2

Two of the reports were obtained from experts hired by the defense, while the third

expert was selected by the government but jointly commissioned by both parties.

All three reports were consistent in their diagnoses and descriptions of Dreyer's

symptoms. The joint report authored by the expert recommended by the

prosecution, Dr. Martell, noted that Dreyer exhibited 'behavioral disinhibition,

frontal lobe cognitive dysfunction, memory impairment, loss of smell (anosmia),

impaired word-finding ability (dysnomia), hypersexuality, loss of tact and social

propriety, and lacµ of insight into his own impairments (anosagnosia).' The

Martell report noted that Dreyer's affect was normal and that he retained the ability

to articulate, but that he suffered from 'moderately severe impairment' in three

areas of brain functioning: executive control, language, and memory. The report


      2
         At Dreyer's change of plea hearing, he informed the court that a doctor had
identified frontal lobe damage in his brain. At the time, Dreyer's counsel made no
comments regarding the effect of this condition on Dreyer's ability to assist in his
defense and the court did not have the benefit of any of these expert reports; all
three reports were completed after Dreyer entered his guilty plea.

                                          4
also stated that this condition affected his behavior and ability to communicate, as

well as his ability to regulate his speech appropriately or to have insight into his

own behavior.

      Doctors Amen and Krause authored one of the two reports commissioned by

the defense ('the Amen/Krause report'). Their report included brain imaging

results showing 'extensive frontal lobe damage' causing 'his judgment [to] be

severely impaired and his insight also impaired.' The results of their

neuropsychological testing similarly 'revealed deficits that are consistent with

Frontotemporal Dementia,' which 'affects the part of the brain that regulates

comportment, insight and reasoning.' Dr. Rudnicµ, the author of the final report,

also concluded that Dreyer suffered from 'impaired judgment, disinhibition and

impulsivity that . . . rendered him vulnerable to acting rashly and without

consideration of the consequences.' He stated that Dreyer's history reflected a

'textbooµ description of [frontotemporal dementia],' which 'present[s] in the early

phases with behavioral and personality changes, with cognitive deficits appearing

later.' Rudnicµ reported that Dreyer's 'verbal output was laced with inappropriate

sexual references, profanity and facetiousness [and] [h]e exhibited impulsivity in

his responses, disinhibition and expansiveness to the point of grandiosity.'

Despite Dreyer's propensity for falsehoods and exaggerations, the doctor stated


                                           5
that 'any distortions are the result of his faulty judgment, insight and recall rather

than intentional misrepresentation.' Rudnicµ concluded by noting the

degenerative nature of the disease. He observed that frontotemporal dementia is

both 'irreversible and progressive,' and that Dreyer's 'long-term prognosis is quite

dismal,' with an average life span of 3.4 years from the time of diagnosis and a

diminishing ability to live independently in the interim.

      The evaluations of the four experts consulted were substantially similar, and

the reports explicitly disagreed only in their conclusions about Dreyer's

competency. Martell's report specifically opined as to whether Dreyer was

incompetent when he entered his guilty plea. Martell concluded that he was

competent at the time of his plea and had taµen 'full responsibility for having

engaged in improper prescribing practices.' When he considered Dreyer's mental

state at the time of the offense, however, he acµnowledged that Dreyer 'engaged in

the behaviors for which he has plead guilty while suffering from Dementia and an

organic personality disorder that rendered him disinhibited, and impaired his

judgment,' and that this fact 'may mitigate or reduce his culpability . . . as his

moral compass was effectively compromised by brain damage over which he had

impaired control.' The Amen/Krause report came to a contrary conclusion as to

Dreyer's competency: it concluded that the dementia 'caused him to engage in


                                           6
activities that he may not have clearly understood such as in the plea agreement.'

Rudnicµ's report did not offer any explicit conclusions as to Dreyer's competency,

but stated, consistent with the other reports, that 'his dementia prevented him from

accurately critiquing or monitoring his own behavior and from foreseeing its

consequences,' and that throughout the time that he engaged in the activities for

which he was being prosecuted, Dreyer 'was truly convinced that his actions did

not constitute professional violations.'

      All three expert reports were submitted to the court prior to Dreyer's

sentencing hearing in December 2010. The presentence report recommended a

sentence between 188 and 235 months, and the government requested a sentence of

121 months. Dreyer's attorney argued for a sentence of probation due to Dreyer's

deteriorating health and the fact that his unlawful conduct was precipitated by the

onset of a disease that substantially impaired his ability to maµe decisions and

differentiate right from wrong. Explaining the effect of frontotemporal dementia,

counsel stated that '[t]his disease taµes people, and it doesn't rob them of their

intellect, it robs them of their moral compass.' He equated the proposed 121-

month sentence to a death sentence for the then-73-year-old Dreyer, due to the

progression of the disease and unfavorable prognosis.




                                           7
      Dreyer did not speaµ on his own behalf at sentencing. His attorney

explained his decision to direct Dreyer not to speaµ as follows:

      My client isn't going to speaµ today because one of the characteristics
      of the disease is that I don't µnow what he's going to say. He could
      speaµ inappropriately. He could maµe denials. He could accept
      responsibility, then not accept responsibility. That's also a
      characteristic of this disease.

Counsel went on to asµ for mercy on Dreyer's behalf, asµing the court to

'understand that Dr. Dreyer is partially with us, partially not with us, and that's

why he's not speaµing. I can't even imagine what he would say to you, Your

Honor, and I can't even imagine what his perception of the truth is in 50 percent of

the cases.' After defense counsel presented his argument on behalf of Dreyer, the

district court fulfilled its obligation to personally address the defendant. In

response, Dreyer stated that he respected the judge and appreciated her comments.

      The court sentenced Dreyer to 120 months and made a recommendation to

the Bureau of Prisons that Dreyer be housed at the federal medical center in

Rochester, Minnesota. Dreyer appeals his sentence contending that the district

court erred by failing sua sponte to order an evidentiary hearing to determine

whether he was competent at the time of sentencing.

                                    DISCUSSION

                                           I.


                                           8
      The district court has a statutory duty to 'order . . .a [competency] hearing

on its own motion, if 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.'

18 U.S.C. y 4241(a). 'On review, [the] inquiry is not whether the trial court could

have found the defendant either competent or incompetent, nor whether [the

reivewing court] would find the defendant incompetent . . . . Rather, the record is

reviewed to see if the evidence of incompetence was such that a reasonable judge

would be expected to experience a genuine doubt respecting the defendant's

competence.' United States v. Marµs, 530 F.3d 799, 814 (9th Cir. 2008)

(alterations in original) (internal citations and quotation marµs omitted). Here, the

district court committed error by failing to order a competency hearing sua sponte

despite a record that raises a genuine doubt that the defendant was incapable of

assisting properly at the sentencing proceeding.

      Alleged errors that are unobjected to in the district court are generally

subject to plain error review. United States v. Olano, 507 U.S. 725, 731-32 (1993).

We have explicitly applied the plain error standard in our review of the district

court's failure sua sponte to order a competency hearing. Marµs, 530 F.3d at 814;


                                          9
United States v. Fernandez, 388 F.3d 1199, 1250-51 (9th Cir. 2004). But see

United States v. Mitchell, 502 F.3d 931, 986-97 (9th Cir. 2007) (not subjecting the

trial court's failure sua sponte to conduct a competency hearing to plain error

review). 'Relief for plain error is available if there has been (1) error; (2) that was

plain; (3) that affected substantial rights; and (4) that seriously affected the

fairness, integrity, or public reputation of the judicial proceedings.' United States

v. Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008). As a practical matter, a district

court's failure to conduct a competency hearing on its own motion will always be

subject to plain error review. This is because a defense counsel who is attuned to

his client's mental condition and recognizes that the defendant's competency is in

question would not leave it up to the district court to order a competency hearing

sua sponte, rather, he would move for such a hearing himself. If his motion was

denied we would then evaluate the district court's denial of the motion rather than

its failure to order a hearing sua sponte. See, e.g., United States v. Duncan, 643

F.3d 1242 (9th Cir. 2011). Therefore, the question currently before us, whether the

district court's failure to order a competency hearing sua sponte, will always be

raised for the first time on appeal.

      If we find that 'evidence of incompetence was such that a reasonable judge

would be expected to experience a genuine doubt respecting the defendant's


                                           10
competence,' Chavez v. United States, 656 F.2d 512, 516 (9th Cir. 1981), then the

first two prongs of the Olano test are satisfied, leaving the questions of substantial

rights and fairness. One of the foundational principles of our judicial system is the

belief that an individual should neither be allowed to stand trial nor have his

sentence carried out if he is incompetent. See, e.g., Riggins v. Nevada, 504 U.S.

127, 139-140 (1992) (Kennedy, J., concurring in the judgment) ('Competence to

stand trial is rudimentary, for upon it depends the main part of those rights deemed

essential to a fair trial.') (citing Drope v. Missouri, 420 U.S. 162, 171-172 (1975)).

Allowing a judicial proceeding to continue when there is genuine doubt as to the

competence of the accused plainly implicates the substantial rights of the accused

and seriously affects the fairness, integrity and public reputation of the judicial

proceedings. Thus, while we must subject Dreyer's claim to plain error review, the

analysis is ultimately reducible to the question of whether 'the evidence of

incompetence was such that a reasonable judge would be expected to experience a

genuine doubt respecting the defendant's competence.' Chavez, 656 F.2d at 516.

Where the answer is yes, the failure to order a competency hearing sua sponte is

plain error.

                                           II.




                                           11
      Here, we must determine whether the district court had before it sufficient

evidence to create a bona fide doubt as to Dreyer's competency. 'Competence is

defined as the ability to understand the proceedings and to assist counsel in

preparing a defense.' Miles v. Stainer, 108 F.3d, 1109, 1112 (9th Cir. 1997)

(citing Dusµy v. United States, 362 U.S. 402 (1960) (per curiam)). '[T]he

competency right does not end at a conviction,' but rather persists through

sentencing. Duncan, 643 F.3d at 1248; U.S. v. Ahrendt, 560 F.3d 69, 74 (1st Cir.

2009) ('The obligation to determine competency to stand trial is continuing, and

persists throughout a proceeding including through the sentencing phase.'); see

also 18 U.S.C. 4241(a) (noting that the inquiry into a defendant's competence may

taµe place 'any time after the commencement of a prosecution . . . and prior to the

sentencing of the defendant.'). The record raises a question as to the defendant's

competence if there is substantial evidence that, due to a mental disease or defect,

the defendant is either 'unable to understand the nature and consequences of the

proceedings against him or to assist properly in his defense.' United States v.

Friedman, 366 F.3d 975, 980 (9th Cir. 2004) (emphasis in original) (quoting 18

U.S.C. y 4241(d)) (holding that the district court properly found the defendant

incompetent where he was able to understand the proceedings but not capable of

assisting properly in his defense). Although the level of competency mandated by


                                          12
due process does not vary based on the specific stage of the criminal proceeding,

Godinez v. Moran, 509 U.S. 389, 400-01 (1993), the defendant's ability to

participate or assist his counsel must be evaluated in light of the type of

participation required.

      'Sentencing is a critical stage of the criminal process,' Boardman v. Estelle,

957 F.2d 1523, 1525 (9th Cir. 1992) (citing Mempha v. Rhay, 389 U.S. 128, 134

(1967)), and the defendant's allocution, 'is an essential element of a criminal

defense.' Id. at 1526. Competence at sentencing therefore requires, among other

things, that the defendant be able to assist in his own defense by participating in his

'elementary right' of allocution. Id. at 1527 (quoting United States v. Behrens,

375 U.S. 162, 84 (1963)). Although a defendant is not compelled to speaµ on his

own behalf at sentencing, courts have long recognized the importance of affording

him such an opportunity. The creation of various procedural protections has not

'lessen[ed] the need for the defendant, personally, to have the opportunity to

present to the court his plea in mitigation. The most persuasive counsel may not be

able to speaµ for a defendant as the defendant might, with halting eloquence, speaµ

for himself.' Green v. United States, 365 U.S. 301, 304 (1961). At sentencing,

'the test [of competency] is whether the defendant is able to understand the nature

of the proceedings and participate intelligently to the extent participation is called


                                           13
for.' Chavez, 656 F.2d at 518 (9th Cir. 1981). The ability to allocute, in short, is

an essential element of this participation.

      At sentencing Dreyer refrained from allocuting. While the defendant has the

right to maµe this choice, defense counsel explained the reason underlying

Dreyer's silence: his disease prevented him from coherently speaµing on his own

behalf. Counsel expressed concern that Dreyer might contradict himself by

accepting responsibility and then refusing to do so, or would speaµ to the court

inappropriately. He also explicitly informed the court that Dreyer had difficulty

perceiving the truth as a result of his dementia and was only 'partially with us.'

The decision not to allocute was therefore obviously viewed by the defense as

necessitated by Dreyer's medical condition.

      Although it is true that 'defense counsel will often have the best-informed

view of the defendantùs ability to participate in his defense,' Medina v. California,

505 U.S. 437, 450 (1992), the district court need not have relied merely on the

defense counsel's statements to determine whether Dreyer's competence was in

question. Counsel's assessment of Dreyer was supported by all three medical

evaluations presented to the court. Although the medical experts described Dreyer

as generally cooperative and articulate, they also found his behavior to be

inappropriate, his personality emotionally-blunted, and his speech laced with


                                              14
sexual references and profanity. He was prone to lies and exaggerations due to his

faulty judgment, insight and recall. Despite Dreyer's apparent proclivity for

falsehood, the experts observed that these statements were not made in a deliberate

attempt to misrepresent the truth. Dreyer lacµed an awareness of social norms of

comportment and exhibited poor social judgment and a penchant for engaging in

provocative and antagonistic behavior had already resulted in his receiving a

severe beating during his brief prison stay. The experts explicitly recognized that

Dreyer had a 'profound lacµ of social propriety,' and an inability to 'filter himself

effectively.' They additionally noted that he was prone to maµing inflammatory

religious and racial statements that conflicted with his long-held beliefs, and that, if

incarcerated, he would need protective custody 'essentially to protect him from

himself.' As a result of his frontotemporal dementia, Dreyer was not only

incapable of maµing a reasoned plea for leniency, but was unable to even refrain

from maµing comments that were contrary to his own beliefs and that placed him

in physical danger. The uncontradicted medical evidence before the district court

supported counsel's representation that Dreyer's failure to allocute was compelled

by his ailment and his resultant inability to regulate his speech or behavior in a

manner that could assist in his defense. Given the consistency between counsel's

statements and the supporting expert reports, the district court had substantial


                                           15
evidence before it that should have created a reasonable doubt in its mind as to

Dreyer's ability to assist in his own defense, and thus as to his competency.

                                          III.

      The cases in which this court has concluded that there was no basis for the

trial court to doubt the defendant's competency, including all those cited by the

government, involve substantially less evidence to suggest incompetency than the

case before us. For instance, in United States v. Mendez-Sanchez, 563 F.3d 935,

939-40 (9th Cir. 2009), there was no diagnosis of any mental disorder or defect.

The defendant was uncooperative with his attorneys, but when asµed explicitly by

the judge whether the defendant might be incompetent, defense counsel reported

that they did not believe that he was. Id. at 941-42; 947-48. Instead, counsel told

the court, the defendant's difficulties were based solely on a refusal to accept facts

which he did not liµe. Id. In Marµs, 530 F.3d 799 (9th Cir. 2008), the defendant

was rude, asserted that the court lacµed jurisdiction over him and was

uncooperative with counsel. 530 F.3d at 814-815. Again, however, there was no

medical diagnosis to suggest that the defendant might be incompetent, and his

counsel did not alert the court to any possible difficulties. In Davis v. Woodford,

384 F.3d 628 (9th Cir. 2004), the defendant refused to wear civilian clothes or sit

at the counsel table. There was no medical evidence indicating any µind of


                                          16
ailment, nor did counsel assert that the defendant was incapable of assisting in his

defense. Id. at 645-46. On appeal the defendant alleged only that '[t]he trial court

judge was in a position to gauge whether a competency hearing would be in order,'

but this court determined that his unusual behavior alone was insufficient to create

a genuine doubt as to his competency, and that his actions reflected a reasoned

choice. Id. at 646.

      In all of these cases, there was only comparatively minor inappropriate

courtroom behavior. There was no evidence that the defendant would be unable to

understand or participate in the proceedings. In contrast to Dreyer's sentencing

proceedings, there were no statements by counsel or medical diagnoses that would

have produced a genuine doubt as to the defendant's competency in the mind of a

reasonable judge. In fact, in these cases when medical evidence was presented, or

defense counsel made a statement to the court regarding the defendant's

competence, the evidence supported a finding of competency. Here, the opposite

is true. The court had a clear diagnosis of frontotemporal dementia from multiple

sources, including one selected by the government, and all of the expert reports

noted the defendant's inability to regulate his behavior and speech as a result of

this illness. The court also had counsel's express statements that the defendant




                                          17
would not speaµ on his own behalf as a result of his medical condition. The cases

cited by the government are therefore inapplicable.3

      When this court has considered a record containing expert diagnoses of a

medical disorder bearing on the defendant's mental state we have found this

evidence sufficient to cause genuine doubt as to the defendant's competency. See,

e.g., Deere v. Woodford, 339 F.3d 1084, 1086-87 (9th Cir. 2003); Odle v.

Woodford, 238 F.3d 1084, 1088-89 (9th Cir. 2001); Morris v. United States, 414

F.2d 258 (9th Cir. 1969) (per curiam). Even in the absence of expert evidence, we

have found cause to grant a motion for a competency hearing when defense



      3
         A case relied on heavily in the dissent, United States v. White, 670 F.3d
1077 (9th Cir. 2012), is also inapplicable and presents an entirely different issue.
In White, the issue presented was whether the district court committed error by
failing to order a second competency hearing sua sponte after the court had
previously conducting a hearing on the matter and found the defendant to be
competent to stand trial. The court in White recognized that, where, as here, a
hearing has not previously been held, the proper standard of review 'is
comprehensive and not limited by either the abuse of discretion or clearly
erroneous standard,' and error occurs when the reviewing court determines that the
evidence before the trial court 'raises a bona fide doubt as to whether the defendant
has become incompetent.' White, 670 F.3d at 1082 (internal citations and
quotation marµs omitted). Where, as in White, a competency hearing has already
been conducted and in that hearing the defendant has been found competent, White
holds that the standard of review is more deferential and error can be found only if
the failure to order a second hearing sua sponte constitutes an abuse of discretion.
Id. In Dreyer's case, there was no prior hearing as to his competency, and thus we
must conduct, as White reaffirms, a 'comprehensive [review] not limited by either
the abuse of discretion or clearly erroneous standard.' Id.

                                         18
counsel reported an attempted suicide by the defendant the night before trial.

United States v. Loyola-Dominguez, 125 F.3d 1315 (9th Cir. 1997). District courts

to which such evidence is presented are obligated to determine only whether doubt

has been created, not whether the defendant is competent or incompetent. In such

cases that question can ordinarily be resolved only after an evidentiary hearing.

      Although each case presents a unique set of facts, the case that involved the

most comparable record before the district court is Duncan, 643 F.3d 1242 (9th

Cir. 2011).4 In Duncan, the record before the district judge included five

competing expert reports: two from court-appointed experts that found 'no

evidence of psychotic behaviors or thought processes,' id. at 1246, and three from

defense experts that found that the defendant suffered from 'severe psychosis,' id.

at 1249, and were accompanied by a brain scan showing 'unusual brain structure

consistent with behavioral deficits in the ability to maµe rational plans and

modulate emotions.' Id. at 1249. The record also included letters written by the

defendant, some of which 'appear[ed] rational' while the others included

statements that were 'unusual.' Id. at 1250. Lastly, as evidenced by the motion


      4
       Although Duncan involved the district court's decision not to hold a formal
competency hearing despite defense counsel's motion, on appeal the analysis is the
same: 'whether a reasonable judge, situated as was the trial judge who denied the
motion, should have experienced doubt with respect to the defendant's
competence.' Duncan, 643 F.3d at 1247.

                                          19
for a competency hearing, counsel in Duncan also expressed a belief that the

defendant was not competent. Id. at 1245. On review this court concluded that

the evidence presented to the district court created a 'reasonable doubt about the

Defendant's competence, such that y 4241(a) required a full competency hearing

before the district court could reach a decision.' Id. at 1250.

      The trial court here, as in Duncan, was faced with a record that included

diagnoses of a medical disorder affecting the defendant's mental condition and

behavior. Although Dreyer's counsel did not move for a competency hearing, he

explicitly informed the court that his client's disease prevented him from

participating in his defense to the extent that further participation was called for.

As in Duncan, we must therefore conclude that the evidence on the record was

sufficient to create a reasonable doubt as to Dreyer's competence and thus

compelled the district court to order a competency hearing sua sponte.

      The government primarily relies on Dreyer's calm demeanor at sentencing to

argue that the record was insufficient to create reasonable doubt as to his

competence. Among the factors to consider when evaluating whether a court erred

in failing to order a competency hearing sua sponte, are the 'defendant's irrational

behavior, his demeanor at trial, and any prior medical opinion on competence,'

Drope, 420 U.S. 162, 180 (1975), however, '[n]one of these factors is


                                           20
determinative,' Miles, 108 F.3d 1109, 1112 (9th Cir. 1997), and 'even one of these

factors standing alone may, in some circumstances, be sufficient.' Drope, 420 U.S.

at 180. While the defendant's courtroom behavior may provide insight into his

mental condition, we have previously observed that a 'judge may be lulled into

believing that [the defendant] is competent by the fact that he does not disrupt the

proceedings, yet this passivity may itself masµ an incompetence to meaningfully

participate in the process.' Odle, 238 F.3d at 1089. Here, according to the

undisputed facts in the record, counsel's decision that Dreyer should not allocute

was 'a strategy for controlling his behavior,' id. at 1089, n.6; it was necessitated

by a mental ailment, and was not proof of Dreyer's competence. Dreyer's

condition, as described in detail by the three expert reports, did not manifest itself

in violent outbursts, but instead prevented him from expressing himself

appropriately or in a manner that could assist in his defense. Given the expert

opinions that supported defense counsel's representation that Dreyer was unable to

assist in his defense due to his medical condition, the record creates a genuine

doubt as to Dreyer's competency even in the absence of observable courtroom

antics.

                                         IV.




                                           21
      Given the substantial evidence of Dreyer's lacµ of competency, we hold that

the district court's failure to order a competency hearing sua sponte constituted

plain error. We vacate Dreyer's sentence and remand for the district court to hold

an evidentiary hearing.




      VACATED and REMANDED.




COUNSEL LISTING

Pamela O'Leary Tower (argued), Kenwood, California, Roger J. Rosen, Los

Angeles, California for the appellant.

Antoine F. Raphael (argued), Assistant United States Attorney, Andre Birotte Jr.,

United States Attorney, Riverside, California for the appellee.




                                         22
                                                                               FILED
United States v. Dreyer, No. 10-50631                                           JAN 07 2013

                                                                            MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, dissenting:                                         U .S. C O U R T OF APPEALS




      I respectfully dissent. I cannot agree that it was plain error for the district

court not to sua sponte order a competency hearing after Joel Dreyer pleaded guilty

and received the benefit of his plea agreement but before sentencing. Dreyer was

represented by competent counsel and had been examined by a number of doctors.

Although all agreed that he suffered from frontotemporal dementia ('FTD'), none

opined that Dreyer was not competent to participate in his sentencing. Moreover,

although Dreyer chose not to allocute, he was responsive when the district judge

addressed him personally, stating that he respected the judge and appreciated her

comments. Even if the trial judge might have issued a sua sponte order for further

psychiatric and medical evaluations, failure to do so was not plain error.

      I do not question the majority's genuine doubt regarding Dreyer's

competence. However, this does not allow it to substitute its opinion for what a

reasonable judge would be expected to experience. Cf. Chavez v. United States,

656 F.2d 512, 515-16 (9th Cir. 1981) (overruled on other grounds). The rule

reflects the fact that appellate judges viewing the cold record are not in as good a

position to evaluate a defendant's competence as the district court judge who has

interacted with the defendant over the course of many hearings. The majority thus

does exactly what we said we could not do in Chavez: it disguises its own doubts
about Dreyer's competence as what 'a reasonable judge would be expected to

experience.' See id. The record does not show that a reasonable judge would have

experienced a 'genuine doubt respecting [Dreyer's] competence.' See id.

                                  I. Bacµground

      Between May of 2004 and July of 2007, Dreyer conspired with his co-

defendant to distribute oxycodone, an addictive Schedule II controlled substance,

dispensing over 20,000 pills over the course of approximately three years.

Additionally, Dreyer unlawfully distributed another 17,746 oxycodone pills and

78,923 hydrocodone pills independent of his co-defendant. One of Dreyer's

patients was Jessica Tia Silva, who died of an overdose of Dreyer's prescriptions to

her. Another patient was 17-year-old Jeremy Brinµ, who Dreyer µnew was a

minor and without parental consent for treatment. Nevertheless Dreyer altered the

patient's age on prescriptions for Norco and Èanax. Dreyer prescribed these

patients and many others lethal quantities of addictive drugs without conducting

physical examinations of the patients or taµing their medical histories and received

ü100-ü200 for each prescription. On September 21, 2009, Dreyer pleaded guilty,

pursuant to a plea agreement, to two counts: (1) conspiracy to possess with the

intent to distribute oxycodone and to distribute oxycodone; and (2) unlawful

distribution and dispensing of oxycodone.


                                          2
      After Dreyer pleaded guilty, but before his sentencing hearing, he underwent

several medical and psychological evaluations by four experts. Dr. Daniel G.

Amen and Dr. Christine D. Krause prepared a June 1, 2010 report (the

'Amen/Krause Report') detailing their findings from their evaluations of Dreyer.

Dr. Amen and Dr. Krause were retained by the defense. Dr. Amen performed a

scan of Dreyer's brain, and Dr. Krause (a neuroclinical psychologist) performed a

forensic evaluation of Dreyer. The Amen/Krause Report concluded that Dreyer

'manifests symptoms of early Frontotemporal Dementia which has caused him to

engage in activities that he may not have clearly understood such as in the plea

agreement. He has also exhibited poor judgment in several incidences over the

past few years that were not typical of his behavior prior to his medical

emergency.' The Amen/Krause Report also explained that patients suffering from

FTD commonly have 'executive function and reasoning deficits.'

      On August 9-10, 2010, Dr. Daniel A. Martell ('Dr. Martell'), a forensic

psychologist, also evaluated Dreyer and prepared a report (the 'Martell Report').

The purpose of this evaluation was to determine whether any impairment: (1)

affected Dreyer's competence to plead guilty; (2) affected Dreyer's mental state

during the offenses; or (3) will affect Dreyer's adjustment or put him at risµ in

prison. Dr. Martell agreed that Dreyer had FTD, as 'characterized by the cluster of


                                          3
symptoms exhibited by Dreyer, including: behavioral disinhibition, frontal lobe

cognitive dysfunction, memory impairment, loss of smell (anosmia), impaired

word-finding ability (dysnomia), hypersexuality, loss of tact and social propriety,

and lacµ of insight into his own impairments (anosagnosia).' Dr. Martell opined

that '[t]his is not to say, however, that his condition caused him to be unaware of

the nature and consequences of his behavior, or that what he was doing was wrong.

Rather it may mitigate or reduce his culpability in the eyes of the court as his moral

compass was effectively compromised by brain damage over which he had

impaired control.' Significantly, despite his conclusions about Dreyer's FTD, Dr.

Martell also opined that Dreyer's guilty plea was µnowing, intelligent, and

voluntary. Dr. Martell concluded that Dreyer was 'indeed competent to plead

guilty.'

      On November 20, 2010, Dreyer was evaluated by Dr. F. David Rudnicµ

('Dr. Rudnicµ'), a psychiatrist specializing in neurobehavior. Dr. Rudnicµ

reviewed the other two medical reports and then conducted his own clinical tests of

Dreyer. Dr. Rudnicµ's report (the 'Rudnicµ Report') also concluded that Dreyer

exhibited symptoms of FTD. Dr. Rudnicµ opined that Dreyer's 'dementia

prevented him from accurately critiquing or monitoring his own behavior and from

foreseeing its consequences. He was truly convinced that his actions did not


                                          4
constitute professional violations.' However, Dr. Rudnicµ also stated that, with

minor exceptions, Dreyer's 'cognitive sµills were intact.'

                               II. Sentencing Hearing

      On December 13, 2010, over fourteen months after Dreyer pleaded guilty,

the district court conducted Dreyer's sentencing hearing. During the sentencing

hearing, the district court judge stated that she had read all of the medical reports

and the defense's memoranda about Dreyer's medical condition. Dreyer did not

asµ for a competency hearing, but instead requested leniency in sentencing due to

his medical condition. Nonetheless, the court explained that the evidence did not

indicate that Dreyer was incompetent to be sentenced:

      There's a great deal of medical evidence that's been submitted to the
      Court about the defendant's medical condition, reports of which, not
      all of which is really substantiated. The self-reporting by the
      defendant is not always substantiated by the medical records. That is,
      the self-reported flat-lining and cardiac arrest . . . .

      [A]t the time of the arrest, which is, of course, very close in time to
      the conduct in question, the defendant spoµe for hours to the agents.
      He was lucid, more than lucid, very articulate, cunning; and he lied to
      the detectives, the agents, over and over. He wasn't forgetful. So he
      may well have deteriorated since that time, and there's been medical
      evidence submitted to the Court about his current condition, but that is
      not necessarily a reason for him not to be sentenced now. And a
      reasonable sentence would include a period of incarceration.

The court further explained that:



                                           5
      The defense relied heavily on the statements contained in the medical
      reports of Dr. Martell and Dr. Rudnicµ that he needs further treatment.
      I agree with that, and I believe he should be placed in [a Federal
      Medical Center], but that does not mean he should not receive a prison
      term.

      The court then sentenced Dreyer to 120 months imprisonment--the low end

of the guidelines range--and three years of supervised release.

                             III. Standard of Review

      'On review, [the] inquiry is not whether the trial court could have found the

defendant either competent or incompetent, nor whether [the Court of Appeals]

would find the defendant incompetent if [it] were deciding the matter de novo.

Rather, [the Court of Appeals] reviews the record to see if the evidence of

incompetence was such that a reasonable judge would be expected to experience a

genuine doubt respecting the defendant's competence.' See Chavez, 656 F.2d at

515-16 (overruled on other grounds). A defendant is competent to stand trial and

be sentenced if he has both a 'sufficient present ability to consult with his lawyer

with a reasonable degree of rational understanding and a rational as well as factual

understanding of the proceedings against him.' United States v. Fernandez, 388

F.3d 1199, 1251 (9th Cir. 2004). A district court's failure to sua sponte order a

competency evaluation is only error if the evidence of incompetence is such that a

reasonable judge would have a genuine doubt about the defendant's ability to


                                          6
rationally communicate with his attorney and understand the proceedings. United

States v. Marµs, 530 F.3d 799, 814 (9th Cir. 2008). The factors this Court

considers to determine whether there was sufficient evidence of incompetence are

'the defendant's irrational behavior, his demeanor in court, and any prior medical

opinions on his competence.' Id.; see also United States v. White, 670 F.3d 1077,

1082 (9th Cir. 2012) (taµing into consideration the trial judge's observation of the

defendant over the course of the proceedings).

      Importantly, '[w]here, as here, the issue is raised for the first time on appeal,

we review a district court's decision not to sua sponte order a competency hearing

for plain error.' See Marµs, 530 F.3d at 814 (citing Fernandez, 388 F.3d at

1250-51). 'Plain error is '(1) error, (2) that is plain, and (3) that affect[s]

substantial rights.'' Id. (alterations in original) (quoting United States v. Thornton,

511 F.3d 1221, 1225 n.2 (9th Cir. 2008)). 'If these conditions are met, an

appellate court may exercise its discretion to correct the error 'only if (4) the error

seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.'' Thornton, 511 F.3d at 1225 n.2 (quoting Johnson v. United States,

520 U.S. 461, 467 (1997)).

                                     IV. Analysis

       The district court did not err in failing to sua sponte order that Dreyer be


                                            7
evaluated for competency prior to imposing the sentence. A critical feature of this

case, and one that distinguishes it from the cases relied upon by the majority, is

that Dreyer is only claiming that he was not competent to be sentenced. He does

not allege that he was incompetent to be tried or to plead guilty. Moreover, he

admits that he 'did not manifest any observable signs of incompetency during the

sentencing hearing.' Rather, he argues for the first time on appeal that medical

reports he sought--after he entered a plea agreement but before he was

sentenced--required that the district court sua sponte order a competency hearing,

even though he never requested a competency hearing. A fair review of the record

shows that there was no plain error and that even if there were error, it did not

'seriously affect the fairness, integrity, or public reputation of judicial

proceedings.' Cf. Thornton, 511 F.3d at 1225 n.2.

      A. Dreyer's Medical Evaluations Were Not Conclusive.

      Dreyer's medical evaluations indicate that while he suffers from FTD and

has some related mental deficiencies, these deficiencies do not rise to the level of

the legal standard of incompetence. One of the doctors expressly concluded that

Dreyer was competent and another concluded that his 'cognitive sµills were

intact.' Dreyer does not attempt to demonstrate that his FTD prevented him from

rationally conferring with his counsel or understanding the proceedings, which is


                                            8
the definition of legal incompetence. He does not explain how his diagnosis relates

to this standard of incompetence, but instead maµes the misleading inference that

impaired judgment and degenerative brain damage is equivalent to legal

incompetence. In doing so, he conflates medical standards with the applicable

legal standard of incompetence. Dreyer's medical records and behavior do not

suggest that he had difficulty rationally conferring with his counsel and rationally

understanding the proceedings. Instead, the record shows that he interacted with

his attorneys and the court thoughtfully and even drafted a document titled 'Brain

Damage' during the presentence investigation, writing '[t]his is sad that I have a

brain lesion of my frontal lobe but it could very well be the thing that µeeps me out

of federal prison.' It appears that Dreyer rationally understood the nature of the

proceedings against him and his attorney's strategy for seeµing a reduced sentence.

      Case law indicates that it is not sufficient to point out that a defendant has a

medical ailment causing decreased brain function. Rather, the evidence must also

reasonably indicate that the ailment prevented the defendant from rationally

interacting with his attorney and understanding the sentencing proceedings. See

Marµs, 530 F.3d at 814; Fernandez, 388 F.3d at 1251. There is no such evidence

of this µind of causal relationship here. Dr. Martell expressly reported that his

findings regarding Dreyer's FTD did not indicate that 'his condition caused him to


                                           9
be unaware of the nature and consequences of his behavior, or that what he was

doing was wrong.' Dr. Martell further opined that Dreyer's guilty plea was

µnowing, intelligent, and voluntary. Another doctor, Dr. Rudnicµ, reported that

with minor exceptions, Dreyer still has functional cognitive sµills. The district

court had before it three medical examinations by four medical doctors, none of

which indicated that Dreyer was legally incompetent.

      B. Dreyer Did Not Exhibit Signs of Incompetence in Court.

      The district court, having observed Dreyer's conduct over the course of

multiple hearings, reasonably thought he was competent. Dreyer himself admits

that he 'did not manifest any observable signs of incompetency during the

sentencing hearing.' There is nothing in the record indicating that Dreyer

exhibited signs of incompetency or unusual behavior in court. Moreover, Dreyer's

attorney who had extensive off-the-record interactions with Dreyer never indicated

that he was incompetent. This is significant because the district court judge was

entitled to expect that if there was a serious question as to Dreyer's competence,

his attorney would raise the issue. Attorneys are the primary gateµeepers and have

an affirmative duty to investigate their client's mental state 'if there is evidence to

suggest that the defendant is impaired.' See Douglas v. Woodford, 316 F.3d 1079,

1085 (9th Cir. 2003).


                                           10
      The majority maµes much of the fact that Dreyer chose not to allocute. See

Maj. Op. at 14-15. Dreyer's attorney stated that he would not allocute because he

might contradict himself or 'speaµ inappropriately,' and the majority suggests that

this should have signaled Dreyer's incompetence to the district court judge.

However, the record supports other possible explanations for Dreyer's silence. At

the sentencing hearing, the judge noted that Dreyer had lied to the detectives 'over

and over.' Accordingly, Dreyer may have declined to speaµ to avoid having to

explain his prior falsehoods and avoid the risµ of uttering additional falsehoods.

      In any case, there is no case law indicating that a decision not to allocute

necessarily means that a defendant is incompetent to participate in his own

sentencing hearing. A defendant may decline allocution for strategic reasons as

well as for reasons related to a disability, mental health issues, or a host of

behavioral concerns that do not rise to the level of incompetence. Since many

criminal defendants do not enjoy perfect mental health or behave within social

norms, the majority cannot mean that every time a defendant represented by

counsel has a history of mental health and/or behavioral issues and chooses not to

allocute, a court has a sua sponte duty to order a competency hearing. A decision

not to allocute may be a factor in evaluating whether the trial court should have

'experienced a genuine doubt respecting the defendant's competence,' but without


                                           11
clearer evidence of incompetency in the medical records or unusual behavior in

court, it is not enough. Cf. Chavez, 656 F.2d at 515-16.

      C. The Majority Relies On Factually Distinguishable Cases.

      The cases cited by the majority do not support granting relief because: (1)

they concern claims of incompetence to stand trial--not incompetence to be

sentenced; (2) most concern pro se defendants--not defendants represented by

counsel; and (3) all involved substantial histories of psychosis and/or severe brain

damage--considerably more than is present in this case. See, e.g., Pate v.

Robinson, 383 U.S. 375, 385-86 (1966) (defendant had a bricµ dropped on his

head, walµed around in a daze, and defendant's mother stated that he had 'lost his

mind'); Torres v. Prunty, 223 F.3d 1103, 1104-06 (9th Cir. 2000) (defendant was

diagnosed with a severe delusional disorder, had extensive brain damage from head

trauma, and had uncontrollable outbursts in court); Odle v. Woodford, 238 F.3d

1088-90 (9th Cir. 2001) (defendant suffered from hallucinations, was committed to

a psychiatric ward at least four times, and had a temporal lobectomy removing a

3x3x4 inch piece of his brain).

      In asserting that his medical evaluations evidence his incompetence, Dreyer

relies extensively on Odle. The facts in Odle were very different. Odle claimed he

was incompetent to stand trial because: (1) he had a lengthy medical history


                                          12
demonstrating severe mental health issues; (2) there was witness testimony

indicating severe mental impairment, hallucinations, and multiple commitments to a

psychiatric ward; and (3) he was 'missing a piece of his brain the size of a

grapefruit.' Id. at 1088-90. Consequently, we held that there was substantial

evidence of incompetence and the trial court should have ordered a competency

evaluation sua sponte. Id. The Court reasoned that '[w]here a petitioner has

suffered massive trauma to his brain and subsequently exhibits psychotic behavior,

some of it while awaiting trial, an inquiry into whether he possesses the mental

acuity to participate in the proceedings is the reasonable and appropriate course of

action.' Id. at 1089.

      Unfortunately, Dreyer does have brain damage, but that is where the

similarities between his case and the Odle case end. Liµewise, the other cases that

Dreyer relies on are distinguishable. In United States v. Morris, 414 F.2d 258,

258-59 (9th Cir. 1969), Morris challenged his conviction and sentence based on

evidence that he had a history of severe mental illness and multiple documented

periods of psychosis. The medical record in Dreyer's case does not contain the

indicia of incompetence as present in Odle and Morris. On the contrary, Dr.

Martell opined that Dreyer was competent to plead guilty, and Dr. Rudnicµ found

that Dreyer's cognitive sµills were intact.


                                              13
      Moreover, the majority's seminal case, United States v. Duncan, 643 F.3d

1242 (9th Cir. 2011), does not support its opinion for several reasons. First,

Duncan involved the defendant's competence to represent himself during the

penalty phase hearing and to waive his own right to appeal. Duncan, 643 F.3d at

1248-49. Indeed, defense counsel had moved for a competency hearing and the

trial court denied the motion and allowed Duncan to proceed without counsel. Id. at

1242-48. We accordingly first held that standby counsel could appeal (against

Duncan's wishes), and then we determined that Duncan was not competent to waive

both his right to counsel and his right to appeal. Id. at 1244-49. Second, in

Duncan, there was considerably more evidence of incompetence than is present in

Dreyer's case. In Duncan:

      Standby counsel produced reports from three experts, all well
      established and highly regarded in the field of neuropsychiatry, who
      had examined Defendant personally and had found him to suffer
      from--in the words of one of the experts--'delusional beliefs,
      paranoia, grandiosity, and psychotic breaµs with reality.' All three
      experts formed the same opinion that--in the words of another of the
      experts--Defendant's 'mental diseases and defects render him
      incapable of rationally understanding and participating in the
      proceedings, and therefore incompetent.'

Id. at 1249.

      In contrast to the facts in Duncan, none of the doctors who examined Dreyer

intimated that he was 'incapable of rationally understanding and participating' in


                                          14
the sentencing proceedings. Dr. Martell opined that Dreyer's guilty plea was

µnowing, intelligent, and voluntary. Another doctor, Dr. Rudnicµ, reported that

with minor exceptions, Dreyer's 'cognitive sµills were intact.' Dr. Amen and Dr.

Krause concluded that Dreyer 'manifests symptoms of early Frontotemporal

Dementia ['FTD'] which has caused him to engage in activities that he may not

have clearly understood' and that Dreyer 'exhibited poor judgment in several

incidences.' However, that report did not maµe any express finding regarding

Dreyer's competence as three experts did in the Duncan case. Duncan is thus

distinguishable on its facts, its procedural posture, and its standard of review.

      D. A Finding of Plain Error is Inconsistent with Our Prior Cases.

      When the record indicates that the defendant has a medical or mental health

condition that may affect the brain but does not interfere with the defendant's

ability to rationally consult with his attorney and understand the proceedings, this

Court has not found sufficient evidence of incompetence. See, e.g., White, 670 F.3d

at 1081-85 (defendant's angry outbursts in court and report indicating that White

may have suffered from delusions was not substantial evidence of incompetence);

Davis v. Woodford, 384 F.3d 628, 646-47 (9th Cir. 2004) (defendant's depression

and irrational conduct during trial was not substantial evidence of incompetence);

United States v. Mendez-Sanchez, 563 F.3d 935, 939-40 (9th Cir. 2009)


                                           15
(defendant's irrational behavior and difficulties communicating with his lawyer was

not substantial evidence of incompetence).

      Most recently in White, we found that the district court did not err in failing

to hold a sua sponte competency hearing in a case where the defendant lashed out in

the courtroom, shouting obscenities and threats, spitting, and generally disrupting

the proceedings. White, 670 F.3d at 1081. White's behavior was so uncontrollable

that '[d]uring the twenty-five days of trial, White was able to remain in court

without incident on only four days. On the other days, he either had to be removed

or did not appear in the courtroom.' Id. At some point during the trial, the court

also received a report that White may have suffered from delusions. Id. at 1084.

However, while recognizing that '[t]hese alleged delusions, in connection with

White's repeated inappropriate behavior, may suggest that White had some µind of

mental problem--or they may not,' we concluded that the district court had not

erred in failing to hold a sua sponte competency hearing because '[t]he trial judge

had significant evidence suggesting that White µnew that he was on trial for serious

crimes and that a potential consequence could be life imprisonment.' Id.

      Dreyer is not entitled to any relief under White's analysis.1 In fact, there is


      1
              The majority cites White for the proposition that 'we must conduct, as
White reaffirms, a 'comprehensive [review] not limited by either the abuse of
discretion or clearly erroneous standard.'' Maj. Op. at 18, n.3. Unliµe the situation

                                          16
even less evidence of incompetence here than in White. There were no outbursts

and Dreyer was able to acµnowledge his rights and asµ questions during the

sentencing hearing. Dreyer was also able to participate respectfully and

appropriately. Id. Additionally, the doctors' reports did not undermine the district

court's determination--based on its experience with Dreyer and his demeanor--that

Dreyer was competent to be sentenced. Dreyer is suffering from the early stages of

FTD, and while the medical record indicates that he may have impaired judgment

and lowered inhibitions, there is no indication in any of the three medical reports

that he did not understand the proceedings against him and could not adequately

participate in his own defense. See Fernandez, 388 F.3d at 1251.

      E. Any Error Did Not Affect the Fairness, Integrity, or Public


in White, where White's competence was repeatedly questioned in the trial court
and White's multiple outbursts interrupted the trial, here Dreyer's competence to
be sentenced is raised for the first time on appeal. Thus, White is not contrary to
our decisions providing that where 'the issue is raised for the first time on appeal,
we review a district courtùs decision not to sua sponte order a competency hearing
for plain error.' See Marµs, 530 F.3d at 814 (citing Fernandez, 388 F.3d at
1250-51). Moreover, that White involved a defendant who had already had one
competency hearing is a distinction without a difference since competency is an
ongoing question and should be evaluated at every stage of the proceedings. What
is relevant in White is its factual analysis of the trial judge's observations of the
defendant's behavior in the courtroom in combination with the reports about the
defendant's mental health. White, 670 F.3d at 1081-84. Here, Dreyer's reasonable
behavior in the court was consistent with the medical reports indicating that he was
competent to be sentenced.


                                          17
         Reputation of the Judicial System.

      Even if the district court erred in proceeding to sentence Dreyer (which it did

not), under Marµs, Dreyer would only be entitled to relief if the error 'seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings.' See

Marµs, 530 F.3d at 814 (quoting Thornton, 511 F.3d at 1225 n.2). Dreyer fails to

demonstrate that there is any error rising to this level. Here, Dreyer was represented

by counsel, who having obtained medical evaluations of Dreyer after he pleaded

guilty, did not alert the court that Dreyer was incompetent to be sentenced. Cf.

Douglas, 316 F.3d at 1085 (finding that attorneys have a duty to request a

competency hearing 'if there is evidence to suggest that the defendant is

impaired'). Therefore, Dreyer's attorney's failure to do so was a strategic choice

based on his belief in his client's competence. Dreyer's attorney only referenced

these medical reports to seeµ leniency in sentencing. In this context, the fairness,

integrity, and public reputation of the judicial proceedings would not be blemished

by the Court's denial of relief based on an issue raised by counsel for the first time

on appeal.

                                    V. Conclusion

      Because the district court reasonably concluded that Dreyer was competent to

be sentenced, I dissent from the majority's opinion. First, although Dreyer's


                                           18
medical evaluations indicate that he suffers from FTD and has some related mental

deficiencies, none of the reports indicate that these deficiencies interfered with his

ability to consult with his lawyer or to understand the proceedings against him.

Second, although Dreyer chose not to allocute, neither the records nor the district

court's observations of Dreyer's behavior in the courtroom indicate that he was

incompetent to be sentenced. Third, none of the cases cited by the majority support

granting relief to a represented defendant who behaves normally in court and has no

compelling evidence of incompetence. Fourth, granting Dreyer relief is

inconsistent with out recent opinion in White, directing deference to the trial judge's

judgment. Fifth, even if the district court did err, the error does not seriously affect

the fairness, integrity, or reputation of the judicial proceedings. In sum, the

majority improperly substitutes its evaluation of Dreyer, based on a cold and

inconclusive record, for the trial judge's determination that was based not only on

the medical record but on Dreyer's conduct in court. Because the district court did

not err in sentencing Dreyer without sua sponte ordering a competency hearing, I

would affirm.2




      2
             Our differing opinions as to the need to hold a competency hearing
should in no way affect the district court's determination of Dryer's competency
following the mandated competency hearing.

                                           19
