United States v. Rey ( 2022 )

Case: 21-40836 Document: 00516501149 Page: 1 Date Filed: 10/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 7, 2022
No. 21-40836 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Cruz Denazareth Rey, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:19-CR-668-1
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam:*
Cruz Denazareth Rey, Jr., pleaded guilty to possessing, with the intent
to distribute, more than 50 grams of methamphetamine. On appeal, Rey
challenges the district court’s failure to sua sponte order a second
competency hearing or otherwise inquire further as to his competency.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-40836 Document: 00516501149 Page: 2 Date Filed: 10/07/2022
No. 21-40836
Because Rey’s arguments are unavailing under the abuse of discretion review
generally applicable in cases challenging a district court’s failure to order a
competency hearing, see United States v. Flores-Martinez, 677 F.3d 699, 706
(5th Cir. 2012), we decline to decide whether the stricter plain error standard
of review is applicable in light of Rey’s failure to make a competency
objection at his rearraignment hearing and failure to move to withdraw his
plea, see United States v. Rodriguez, 602 F.3d 346, 361 (5th Cir. 2010).
A defendant has a procedural due process right to a hearing to
determine his competency if the evidence before the district court raises a
bona fide doubt about his competency. See Pate v. Robinson, 383 U.S. 375(1966); Flores-Martinez, 677 F.3d at 705-06; see also 18 U.S.C. § 4241(a). In
this case, the district court did not err by not ordering a second competency
hearing, considering that the medical expert had opined that Rey was
competent, the district court had conducted one competency hearing and
found Rey competent, the record before the district court indicated that
Rey’s medication regimen had been stabilized, Rey and his counsel
represented that Rey was competent at the rearraignment hearing, Rey
provided lucid responses to the district court’s questions at the competency
and rearraignment proceedings and exhibited an understanding of those
proceedings, and the district court found Rey competent to enter a plea. See
Reese v. Wainwright, 600 F.2d 1085, 1092 (5th Cir. 1979); see also United States
v. Mitchell, 709 F.3d 436, 441 (5th Cir. 2013).
Relatedly, Rey contends that his guilty plea was not voluntary because
his competency was still at issue and not fully determined by the district
court. However, the record, as described above, reveals otherwise.
Accordingly, there was no error, much less the plain error required here
because Rey failed to lodge this objection concerning his plea in district court.
See United States v. Avalos-Sanchez, 975 F.3d 436, 439, 443 (5th Cir. 2020).
The judgment of the district court is AFFIRMED.
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Case: 21-40836 Document: 00516501149 Page: 3 Date Filed: 10/07/2022
No. 21-40836
The Government has filed a motion to strike Rey’s appendix—in
which Rey sought to introduce new evidence before this court—and portions
of his brief referring to that appendix. That motion is GRANTED. See
Galvin v. Occupational Safety & Health Admin., 860 F.2d 181, 185 (5th Cir.
1988).
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