                                                                              FILED
                           NOT FOR PUBLICATION                                APR 17 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50546

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00308-DSF-1

  v.
                                                 MEMORANDUM*
SJARIEFF MCGHEE, AKA Racheed
Binyah, AKA John Joe, AKA Sjariefe
McGhee, AKA Reese, AKA Rieff,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    Dale S. Fischer, District Judge, Presiding

                             Submitted April 6, 2015**
                               Pasadena, California

Before: KLEINFELD, McKEOWN, and M. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Sjarieff McGhee appeals his conviction for bank fraud and other crimes on

two grounds: (1) the district court committed clear error in finding him competent

to stand trial, and (2) the district court abused its discretion in denying his motion

for a third competency evaluation. We affirm.



      The district court made a finding of fact that McGhee was competent to

stand trial based on two expert reports, one prepared by a clinical professor of

psychiatry at the University of Southern California, Dr. Kaushal Sharma, and the

other prepared by a forensic psychologist with the Bureau of Prisons, Dr. Ryan

Nybo. The first report was prepared for a state criminal trial. The second report

was ordered by the district court for the federal trial in which McGhee was

convicted, the conviction he now appeals.



      Although McGhee characterizes it in his brief as a request for a second

competency examination, in effect McGhee was seeking a third competency

examination, because the district court considered both expert reports in finding

him competent. Each report indicated that McGhee was competent. In his report,

Dr. Sharma opined, “The defendant is presently competent to stand trial. The

defendant may be suffering from a mental illness; however, his presentation during


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the interview is more consistent with either embellishing or malingering mental

incompetency.” Dr. Sharma noted that McGhee’s alleged state

crimes—masterminding a multi-person scheme to steal gift cards—“[are] highly

consistent with a person who is deceptive, antisocially motivated and has

functioning cognitive thinking.” (emphasis added). Dr. Sharma concluded:

      I believe the defendant is a rather smart individual who is trying to be
      uncooperative for a conscious purpose perhaps to avoid or delay
      criminal proceedings. I do not find any evidence of mental illness and
      I believe the presumption of competency cannot be overcome. The
      defendant should be considered competent to stand trial.

      Dr. Nybo came to similar conclusions. He noted that McGhee “did not meet

criteria for any mental disorders, mental defects, or personality disorders.” Dr.

Nybo continued:

      From the available information, there is no evidence to indicate the
      defendant suffers from a mental disorder that would substantially
      impair his present ability to understand the nature and consequences
      of the court proceedings brought against him, or substantially impair
      his ability to assist counsel in his defense. It is emphasized he suffers
      from no mental illness. Mr. McGhee holds a rigid and
      nonconventional interpretation of law, which is not unusual for those
      espousing sovereign citizen ideologies. His lack of participation in
      the legal process is not a matter of ability, but rather a choice.

      A psychiatrist and a psychologist both agreed that McGhee had no mental

disorder rendering him incompetent to stand trial. McGhee presented no medical

evidence that he was incompetent; his claim of incompetency rested on his


                                          3
sovereign citizen beliefs, which alone were not sufficient to establish

incompetency. See United States v. Neal, 776 F.3d 645, 657 (9th Cir. 2015).

McGhee’s misguided beliefs were addressed by Dr. Nybo. Dr. Nybo noted that

“[a]lthough [the beliefs] are extreme, they are not of a delusional proportion, as

there are subsets of the population who hold similar beliefs.” The district court

could reasonably accept Drs. Sharma and Nybo’s evaluation of McGhee as correct.

On the record before us, we cannot say that the district court clearly erred in

finding McGhee was competent to stand trial.



      The next challenge McGhee raises is that the district court abused its

discretion in denying his request for a third competency evaluation. McGhee’s

sovereign citizen defense did not warrant a third evaluation because those beliefs,

as noted, were insufficient to show he was incompetent to stand trial. This is true

even if McGhee acted bizarrely or in ways detrimental to his defense. See Neal,

776 F.3d at 657; see also United States v. Johnson, 610 F.3d 1138, 1140 (9th Cir.

2010) (“The record clearly shows that the defendants are fools, but that is not the

same as being incompetent.”). McGhee presented no evidence that would raise

doubt as to his competency beyond what had already been evaluated by Drs.

Sharma and Nybo. The district court had before it the two reports finding McGhee


                                          4
competent to stand trial. With both experts in agreement that McGhee was

competent and no evidence in the record indicating incompetency, we cannot say

the district court abused its discretion in denying McGhee a third evaluation.



      AFFIRMED.




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