                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                      No. 12-10294
             Plaintiff-Appellee,
                                                 D.C. No.
                   v.                      1:10-cr-00165-AWI-1

 ALBERT GARZA,
          Defendant-Appellant.                    OPINION


       Appeal from the United States District Court
           for the Eastern District of California
     Anthony W. Ishii, Senior District Judge, Presiding

                   Argued and Submitted
        January 14, 2014—San Francisco, California

                        Filed May 20, 2014

  Before: Richard C. Tallman and Sandra S. Ikuta, Circuit
   Judges, and Beverly Reid O’Connell, District Judge.*

                   Opinion by Judge Tallman




  *
    The Honorable Beverly Reid O’Connell, United States District Judge
for the Central District of California, sitting by designation.
2                   UNITED STATES V. GARZA

                           SUMMARY**


                           Criminal Law

    Affirming a criminal judgment, the panel held that the
district court did not plainly err by failing to sua sponte
convene a hearing on the defendant’s competency.

    The panel held that there is no substantial evidence that a
reasonable judge would harbor a genuine doubt about the
defendant’s competency, where the defendant’s medical
history evidence isn’t strong and there is no clear connection
between the defendant’s putative dementia and any negative
impact on his ability to understand the proceedings or assist
in his defense.

    The panel rejected the defendant’s attempt to reach plain
error in reliance on 18 U.S.C. § 4241(a), requiring
competency hearings on reasonable cause, and 18 U.S.C.
§ 4247(b), governing commitment for the purposes of an
examination.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. GARZA                     3

                        COUNSEL

Carolyn Wiggin (argued), Assistant Federal Public Defender,
Sacramento, California, for Defendant-Appellant.

Brian W. Enos (argued), Assistant United States Attorney,
Eastern District of California, Office of the United States
Attorney, Fresno, California, for Plaintiff-Appellee.


                         OPINION

TALLMAN, Circuit Judge:

    Albert Garza was sentenced to 20 years in prison after a
jury convicted him of one count of “receipt or distribution”
and one count of “possession” of child pornography. Garza
appeals his conviction and sentence on several grounds. In a
memorandum disposition we address all but one of Garza’s
arguments. In this opinion we decide whether the district
court plainly erred by failing to sua sponte convene a hearing
on Garza’s competency. It did not, so we affirm.

                              I

                              A

    By monitoring an online file-sharing network, federal
agents discovered that Garza was downloading child
pornography. Warrant in hand, the agents went to his home.
While some searched, a pair of agents interviewed Garza at
length. During the interview, he confessed to everything. The
search turned up two computers and a compact disc
containing thousands of photographs and videos of child
4                    UNITED STATES V. GARZA

pornography. Garza was arrested and indicted for one count
of “receipt or distribution” under 18 U.S.C. § 2252(a)(2) and
one count of “possession” under § 2252(a)(4)(B).

                                    B

    Shortly after Garza’s indictment, his first lawyer hired Dr.
Thomas Middleton, a clinical psychologist, to examine Garza
and prepare a written competency report. The report paints
Garza as mentally and emotionally crippled by various
disabilities and the impact of his arrest. Middleton diagnosed
Garza with anxiety and with dementia caused by uncontrolled
diabetes. He concluded, if obliquely,1 that Garza was
incompetent to stand trial.           Middleton based these
conclusions on a single interview and several aptitude tests.
He reviewed no medical records.

    Relying on Middleton’s report, the parties stipulated to,
and the district court entered, an order committing Garza to
the Attorney General’s custody for a competency evaluation.
Garza was sent to a Bureau of Prisons facility in Los Angeles
for several weeks. There, he was observed at length, tested,
and interviewed by government doctors. A comprehensive




 1
   Middleton began his report by summarizing his task, which specifically
included assessing “competence.” But in his conclusion Middleton never
specifically says “incompetent.” He writes that “Mr. Garza does not
appear to be able to rationally address his legal circumstances at this
time.” Though this sentence is vague, the gist of the report makes its
import clear. We will give Garza the benefit of the doubt and treat this as
a specific diagnosis of incompetency.
                     UNITED STATES V. GARZA                               5

report was prepared.2 Dr. Lisa Hope, a forensic psychologist
and the report’s author, wrote that Garza suffered from an
anxiety disorder but not dementia. She concluded that he was
competent to stand trial.

    Hope also concluded that Middleton’s dementia diagnosis
was speculative. She noted that a proper diagnosis requires
access to records that Middleton did not have and testing that
Middleton did not do. Hope also reported that Garza was
malingering—trying to appear incompetent—by deliberately
throwing some of his aptitude tests. Oddly, she also wrote
that Garza “appeared motivated for testing, and put forth
sufficient attention and concentration . . . he would say ‘Yes!’
out loud once he figured out [the answer.] Overall, he
seemed to enjoy the testing process . . . .” Her report never
reconciled this apparent contradiction.

    Potential malingering aside, Hope’s observations were
consistent with her competency finding. She wrote that
Garza exhibited appropriate behavior in his interactions with
other prisoners and staff. She wrote about Garza’s
commendable work history—he was steadily employed as a
mechanic for decades until a heart attack left him unable to
work. Moreover, Hope made clear that Garza understood his
situation. He was able to describe the charges he faced and
the identities and roles of the various actors in the criminal
process. Garza told Hope that he liked and trusted his lawyer.




  2
   We unseal the sealed pages of the Hope report cited in this opinion
only to the extent that unsealing is necessary for purposes of this opinion.
The sealed materials, including the specific pages cited herein, otherwise
remain sealed.
6                UNITED STATES V. GARZA

    After Garza was released from medical custody and
Hope’s report was circulated, the competency issue was
dropped. Garza’s lawyer (a new one) never raised the issue
with the trial judge nor moved for a hearing. None was ever
held. Accordingly, the district court made no specific finding
as to Garza’s competency.

                               C

     Ultimately, plea negotiations failed and Garza went to
trial. The investigating agents testified about how they
located Garza and found child pornography at his home. A
recording of Garza’s interview with the arresting agents was
played for the jury. The jurors heard him admit to the agents
that he had searched for and downloaded child pornography
for years.

    Garza took the stand to testify in his own defense. On
direct, his testimony hinted at incompetence. He testified that
he’d seen numerous psychiatrists, that he was mentally
disabled, and that “diabetes . . . was eating [his] brain.” This
last statement, though it sounds over the top, is arguably
consistent with Middleton’s opinion that Garza’s unchecked
diabetes may have caused brain damage.

    This came later:

       Q: Have there been times during this case
       when you haven’t really understood
       everything that’s been going on?

       A: All of it.
                  UNITED STATES V. GARZA                       7

        Q: Sometimes when we talk, do you
        understand everything I’m telling you?

        A: (Witness shakes head.)

Garza’s lawyer elicited this testimony but did not move to
have his client declared incompetent. Nor did the district
court take any action on its own. Later, on cross-
examination, Garza contradicted the arrest interview by
testifying that he had never before seen child pornography.

    The jury convicted Garza on both counts.

                               D

    At the sentencing hearing, the district court and both
parties repeatedly mentioned Garza’s mental health, but never
referred to his competency. Both Middleton’s and Hope’s
reports were discussed. The district court said that it took “at
face value” that Garza “does suffer from some mental defects
or deficiencies . . . .” The focus of all this discussion was
mitigation. The talk never strayed toward competency.

    In aggravation, the government argued, and the district
court agreed, that Garza willfully perjured himself when he
testified contrary to what he had told the arresting agents. To
justify its finding that Garza’s statements were deliberate lies,
the court, reading from its own trial notes, offered its
impression that Garza was playing possum on the
stand—pretending to be confused on direct only to become
alert and engaged on cross. Both the judge and the prosecutor
noted that Garza even anticipated one of the prosecutor’s
questions. “I think Mr. Garza is malingering,” the court said.
8                   UNITED STATES V. GARZA

    It then sentenced Garza to 240 months on the receipt or
distribution charge and 120 months on the possession charge,
both terms to run concurrently. Garza’s contribution to the
hearing, his allocution, was this: “Just that I apologize, sir, for
everything—I just want to get better. Sorry. I’m sorry.”

                                   II

   We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a).

                                  III

    A defendant that “lacks the capacity to understand the
nature and object of the proceedings against him, to consult
with counsel, and to assist in preparing his defense may not
be subjected to a trial.” See Drope v. Missouri, 420 U.S. 162,
171–72 (1975). And “the failure to observe procedures
adequate to protect a defendant’s right not to be tried or
convicted while incompetent to stand trial deprives him of his
due process right to a fair trial.” Id. at 172 (citing Pate v.
Robinson, 383 U.S. 375 (1966)). Sometimes “adequate”
means that the district court must sua sponte consider a
defendant’s competency. The question is whether this is one
of those times.

    Garza says yes. He argues that the district court plainly
erred by failing to sua sponte hold a competency hearing.3


    3
    The failure to sua sponte hold a competency hearing will always be
reviewed for plain error. United States v. Dreyer, 705 F.3d 951, 960 (9th
Cir. 2013) (“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
                     UNITED STATES V. GARZA                              9

Failing to sua sponte hold a competency hearing is plain error
only if “the evidence of incompetence was such that a
reasonable judge would be expected to experience a genuine
doubt respecting the defendant’s competence.” Dreyer,
705 F.3d at 961 (internal citations and quotations omitted).
To raise a genuine doubt, there must be “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.”
Id. (internal citations and quotations omitted) (emphasis in
original). Relevant evidence falls into three broad categories:
medical history, the defendant’s behavior in and out of court,
and defense counsel’s statements about the defendant’s
competency. See, e.g., United States v. Marks, 530 F.3d 799,
814 (9th Cir. 2008).

    Our review is limited. We ask only whether substantial
evidence exists such that a reasonable judge would harbor a
genuine doubt.4 See United States v. Mitchell, 502 F.3d 931,
986 (9th Cir. 2007). Whether the defendant is, in fact,
competent is a separate inquiry outside our ambit.




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.”).
  4
    Even though this is a direct appeal, we look to our cases reviewing
collateral challenges to the extent they also involve a “substantial
evidence” inquiry. See, e.g., Deere v. Woodford, 339 F.3d 1084, 1086
(9th Cir. 2003) (applying substantial evidence standard to pre-AEDPA
habeas proceeding); Davis v. Woodford, 384 F.3d 628, 644–45 (9th Cir.
2000) (applying substantial evidence standard to post-AEDPA habeas
proceedings).
10               UNITED STATES V. GARZA

                              A

    The substantial evidence standard is “not easily applied.”
Basset v. McCarthy, 549 F.2d 616, 619 (9th Cir. 1977).
“There are, of course, no fixed or immutable signs which
invariably indicate the need for further inquiry to determine
fitness to proceed; the question is often a difficult one in
which a wide range of manifestations and subtle nuances are
implicated. That they are difficult to evaluate is suggested by
the varying opinions trained psychiatrists can entertain on the
same facts.” Drope, 420 U.S. at 180. Accordingly, it is
understandable that our case law lacks specific rules about
when the standard is met.

    Nonetheless, general guidelines have emerged. For
example, an appellant who has absolutely no medical history
evidence indicating incompetency will almost certainly fail
to upset his conviction. See, e.g., Mendez-Sanchez, 563 F.3d
935, 948 (9th Cir. 2009); Marks, 530 F.3d at 815. Of course,
a case may arise where the other indicators of incompetence
are so powerful that we are compelled to find plain error even
absent medical history evidence. It just hasn’t happened yet.

    Often, even cases with detailed medical history evidence
fail to convince us that a reasonable judge would have a
genuine doubt. Basset, 549 F.2d at 617, provides an apt
example. There, the defendant, who had been deemed
schizophrenic since childhood, was declared “presently
insane” by two government psychiatrists just prior to trial.
Id. at 617–20. He was then committed for treatment, and
later released after other government doctors certified his
competency. Nonetheless, the defendant later misbehaved
toward his counsel at trial. That misbehavior could have
arisen from schizophrenia or simple frustration. We decided
                 UNITED STATES V. GARZA                     11

the latter after noting that, prior to the crime, the defendant
was a socially capable, average college student and that, in
spite of the misbehavior, neither the court nor defense counsel
raised the competency issue. Id.

    Darrow v. Gunn, 594 F.2d 767 (9th Cir. 1979), is similar.
There, two government psychiatrists deemed the defendant
normal. Id. at 769–70. Another, hired by the defendant,
labeled him a “paranoid schizophrenic living in a delusional
world.” Id. at 769. In spite of that finding, the defense
psychiatrist claimed that the defendant was “aware of the
nature of the charges against him and could cooperate and
collaborate with the public defender’s office.” Id. We found
no substantial evidence. Id. at 770–71.

    Basset and Darrow are but two unextraordinary examples
of the many cases where we have found that some medical
evidence—even some medical evidence of an extraordinarily
debilitating condition—does not rise to the level of
substantial evidence. See, e.g., Davis, 384 F.3d at 644; Boag
v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985); Steinsvik v.
Vinzant, 640 F.2d 949, 954 (9th Cir. 1981); Sailer v. Gunn,
548 F.2d 271, 274 (9th Cir. 1977). The bar is plainly high.

                              B

    But some cases do get over it. And that leaves the
question of how to distinguish between the cases with
medical evidence that do and the cases with medical evidence
that don’t. There appear to be two key factors: strong
evidence of a serious mental disease or defect, and a clear
connection between that disease or defect and some failure by
the defendant to understand the proceedings or assist in his
own defense.
12               UNITED STATES V. GARZA

    Turning to the first factor, the question is how strong have
we required the evidence of a serious mental disease or defect
to be. Historically, we have deemed it sufficient in either of
two situations. First, where it is undisputed that the defendant
has a serious mental disease or defect. See Torres v. Prunty,
223 F.3d 1103, 1109–10 (9th Cir. 2000); Miles v. Stainer,
108 F.3d 1109, 1112–13 (9th Cir. 1997); Moore v. United
States, 464 F.2d 663, 665–67 (9th Cir. 1972). And second,
where the existence of a mental disease or defect is disputed,
but the defendant engages in bizarre or erratic behavior,
especially in court. See Maxwell v. Roe, 606 F.3d 561,
574–76 (9th Cir. 2010); McMurtrey v. Ryan, 539 F.3d 1112,
1125–27 (9th Cir. 2008); Chavez v. United States, 656 F.2d
512, 519 (9th Cir. 1981); Tillery v. Eyman, 492 F.2d 1056,
1059 (9th Cir. 1974). But, where the defendant behaves and
the medical experts battle over whether he is mentally
disabled at all, we have not found substantial evidence. See
Amaya-Ruiz v. Stewart, 121 F.3d 486, 492–93 (9th Cir.
1997); de Kaplany v. Enomoto, 540 F.2d 975, 983–85 (9th
Cir. 1976) (en banc).

    The second factor is a clear connection between the
defendant’s serious mental disease or defect—established via
the first factor—and some failure by the defendant to
understand the proceedings or assist in his own defense.
Where the defendant’s mental problem—even if severe—has
no discernible impact on the proceedings, we have not found
substantial evidence. See Davis, 384 F.3d at 645–46; Boag,
769 F.2d at 1343–44; Steinsvik, 640 F.2d at 952–54; Bassett,
549 F.2d at 620–21. Even a mentally deranged defendant is
out of luck if there is no indication that he failed to
understand or assist in his criminal proceedings. See, e.g.,
Steinsvik, 640 F.2d at 951–54. And even if that same
defendant did fail to understand or assist in his proceedings,
                 UNITED STATES V. GARZA                     13

he would still be out of luck unless his mental impairment
caused the failure. See, e.g., Amaya-Ruiz, 121 F.3d at
492–93. We must see a connection. A defendant who
refuses to work with his lawyer out of spite alone is not
incompetent even if that defendant has a serious mental
disease or defect. See, e.g., Davis, 384 F.3d at 645–46.

    Our cases finding substantial evidence have consistently
turned on these two key factors. Our most recent case and
one of our oldest are prime examples. In Dreyer, 705 F.3d at
958–59, all the medical experts diagnosed the defendant with
frontotemporal dementia. Id. And because the dementia was
the stated reason why the defendant chose not to allocute at
sentencing, we found substantial evidence that a reasonable
judge would harbor a genuine doubt about his competency.
Id. Both factors were present. There was no dispute that
Dreyer suffered from a serious mental disease or defect and
it was that disease or defect that prevented him from assisting
in his defense by preventing him from allocuting.

    Similarly, in Rhay v. White, 385 F.2d 883, 884 (9th Cir.
1967), it was undisputed that the defendant had a “history of
chronic mental disturbances, paranoid traits, violent
behavioral explosions and previous institutional diagnoses,
from the time he was a boy to his commission at age 22 of the
murders.” Equally clear was that his inability to control
himself hindered his defense, as defense counsel had to ask
for recesses throughout the trial to allow his client time to
cool down because he was “very close to a psychotic break.”
Id. at 885.
14               UNITED STATES V. GARZA

                              C

     By attempting this rough categorization we do not mean
to imply more uniformity than exists or to create rules where
only rough guidelines are appropriate. Substantial evidence
is, inevitably, a case-by-case analysis. And we acknowledge
the presence of outliers. See, e.g., Deere, 339 F.3d at
1086–87 (finding substantial evidence based solely on
disputed medical evidence without extreme behavior). This
discussion of the substantial evidence standard is meant only
to provide general guidelines. Guidelines we now apply to
Albert Garza.

                              IV

    There is no substantial evidence such that a reasonable
judge would harbor a genuine doubt about Garza’s
competency. Garza has medical history evidence but neither
of the two key factors is present. Garza’s medical history
evidence is not strong—it is disputed whether he has a serious
mental disease or defect at all, and his behavior, both in and
out of court, was far from erratic. Nor is there a clear
connection between any mental disease or defect and any
failure on Garza’s part to understand the proceedings or assist
in his own defense. Thus, Garza’s case falls among those
with some medical history evidence that nonetheless fail to
exhibit substantial evidence.

                              A

   Garza has shown neither of the two hallmarks that
separate the cases with medical history evidence that reach
substantial evidence from those that do not. First, Garza’s
medical history evidence isn’t strong. Although dementia
                    UNITED STATES V. GARZA                           15

certainly qualifies as a serious mental disease or defect,
Middleton and Hope dispute whether Garza has it.5 Because
of the dispute, Garza needs strange behavior to satisfy the
first factor. But he exhibited none. According to Hope,
“Garza was housed in the general population . . . without
incident. [And he] was generally able to adapt to the demands
of incarceration.” “There were no signs of odd or bizarre
behavior” during his weeks in federal medical custody. The
trial was no different. Garza sat through the trial and testified
without incident, much less an incident like what we’ve
required in the past. See Maxwell, 606 F.3d at 570–71
(suicide attempts); Tillery, 492 F.2d at 1057 (laughing at the
jury, ripping off clothes, screaming).

    Second, there is no clear connection between Garza’s
putative dementia and any negative impact on his ability to
understand the proceedings or assist in his defense. To the
contrary, we know Garza understood the nature of the
proceedings because he described them, accurately and in his
own words, to Hope. And Garza was, in fact, able to assist in
his defense. He testified. He allocuted. And his counsel had
no complaints. Garza’s own testimony that he didn’t know
what was going on is simply not credible in light of his
explanation to Hope and his sharp, if false and unsuccessful,
testimony on cross-examination. There is no substantial
evidence here.




 5
   We think that no reasonable judge would doubt that Hope got the better
of the debate. Middleton was tentative. He repeatedly noted that a review
of Garza’s medical records would have firmed-up his diagnosis, but he
never reviewed those records. Hope did. She also conducted more tests
and observed Garza for far longer than did Middleton.
16               UNITED STATES V. GARZA

    This conclusion draws further support from two obvious
places. First, Garza’s lawyer dropped the competency
challenge after Garza was evaluated in federal medical
custody. That he chose to yield the issue, rather than seek a
hearing, is telling. See Hernandez v. Ylst, 930 F.2d 714, 718
(9th Cir. 1991) (“[A] defendant’s counsel is in the best
position to evaluate a client’s comprehension of the
proceedings.”). That he never raised the issue at trial, even
after Garza’s testimony on the subject, is even more so.
Second, the district court was well aware of Garza’s mental
health issues. He said so. And he reviewed the two doctors’
reports before the sentencing. Yet, instead of holding a
hearing, he found that Garza was malingering and that he
committed willful perjury on the stand. These findings, made
by an experienced trial judge with a far better vantage point
than ours, give us confidence in our conclusion.

                             B

    Garza makes another argument, attempting to reach plain
error by statutory, as opposed to evidentiary, means. He
relies on the statutes providing for competency proceedings
in federal court, including 18 U.S.C. § 4241(a), which
obligates district courts to sua sponte hold competency
hearings on reasonable cause:

       The court shall . . . 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
                 UNITED STATES V. GARZA                      17

       proceedings against him or to assist properly
       in his defense.

18 U.S.C. § 4241(a) (emphasis added). Subsection (b)
provides that “prior to the date of the hearing, the court may
order a psychiatric or psychological examination” and it
refers to 18 U.S.C. § 4247(b), which allows the court to,
“[f]or the purposes of an examination[,] . . . commit the
person to be examined . . . to the custody of the Attorney
General.”

    Relying on these statutes, Garza makes two arguments.
The first runs like this: Garza was committed under §§ 4241
and 4247, so the district court must have had reasonable
cause to believe he was incompetent. Since the district court
had reasonable cause, Garza argues that we must find
substantial evidence that a reasonable judge would harbor a
genuine doubt. This logic ignores our obligation to review all
the evidence before the district court, not just the evidence it
had when it committed Garza. All the judge had at that time
was Middleton’s report and the parties’ stipulation; Hope’s
contrary report and Garza’s courtroom performance came
much later. We have just explained why all the evidence,
taken together, fails to establish plain error. It is simply
irrelevant that some of the evidence would do the trick if
evaluated in isolation.

   The second argument appears to be that any defendant
committed for examination under § 4247 is, by virtue of the
committment, entitled to a competency hearing. This
argument is not without textual support, as § 4241(b) does
imply that the “examination” will be ordered “prior to the
hearing.” But the more specific language trumps the general,
and that specific language requires a hearing on “reasonable
18               UNITED STATES V. GARZA

cause.” It makes perfect sense that the examination ordered
under § 4247 might, as it apparently did here, dispel
reasonable cause. A § 4247 examination does not
automatically entitle a defendant to a hearing.

                             V

     There was no plain error here because no reasonable
judge would harbor a genuine doubt about Garza’s
competency; no reasonable judge would harbor a genuine
doubt about Garza’s competency because there was not
substantial evidence; there was not substantial evidence
because Garza’s medical history, his behavior in and out of
trial, and his defense counsel’s statements do not reveal a
defendant incapable of either understanding the nature of the
proceedings against him or assisting in his defense.

     AFFIRMED.
