United States v. Roberto Barajas-Cuevas , 492 F. App'x 745 ( 2012 )

FILED
NOT FOR PUBLICATION AUG 16 2012
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
No. 11-50305
Plaintiff-Appellee,
D.C. 2:10-cr-01032-JFW-1
v.
MEMORANDUM *
ROBERTO BARAJAS-CUEVAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted August 10, 2012 **
Pasadena, California
Before: SILVERMAN and WARDLAW, Circuit Judges, and FOGEL, District
Judge***
Defendant-Appellant Roberto Barajas-Cuevas ("Barajas-Cuevas") appeals
his conviction and sentence following his plea of guilty to one count of illegal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jeremy Fogel, District Judge, United States District Court
for the Northern District of California, sitting by designation.
reentry of an alien in violation of 8 U.S.C. § 1326. He asserts that the district court
erred by: finding that he was competent to stand trial; permitting him to represent
himself; and imposing a sentence of fifty-one months imprisonment.1 We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I.
The district court did not clearly err in finding that Barajas-Cuevas was
competent to stand trial. See United States v. Gastelum-Almeida, 298 F.3d 1167,
1171 (9th Cir. 2002) (articulating clear error standard). A defendant is competent
to stand trial if he (1) "has 'a rational as well as factual understanding of the
proceedings against him'" and (2) "'has sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding.'" Indiana v. Edwards,
554 U.S. 164, 170 (2008) (quoting Dusky v. United States, 362 U.S. 402, 402
(1960) (per curiam)) (emphasis omitted). Competency to stand trial must be
established by a preponderance of the evidence. United States v. Chischilly, 30
F.3d 1144, 1150 (9th Cir. 1994).
The district court conducted a competency hearing following a court-ordered
evaluation of Barajas-Cuevas by a Bureau of Prisons ("BOP") forensic
1
We decline to consider additional arguments set forth in an unauthorized
supplemental brief that was submitted by Barajas-Cuevas on July 26, 2012. See
Fed. R. App. P. 28(c).
2
psychologist. The psychologist concluded that while some of Barajas-Cuevas's
comments superficially might suggest an underlying thought disorder or delusional
belief system - e.g., statements that the court was in "default" and that
Barajas-Cuevas "followed the Uniform Commercial Code" - Barajas-Cuevas was
able to ascertain reality and realistically appraise his behavior. She found no
evidence that Barajas-Cuevas suffered from a major mental disorder that would
impair his ability to understand the proceedings against him and assist counsel in
his defense. She opined that Barajas-Cuevas's belief in a philosophy espoused by
tax protestors and anti-governmental groups was at the root of his conduct, which
she characterized as "volitional in nature and not the product of genuine mental
illness."
The BOP evaluation was the only evidence submitted on the issue of
competency. Barajas-Cuevas argues that the district court nonetheless should have
disregarded the evaluation in light of his numerous nonsensical challenges to the
court's jurisdiction, references to the Uniform Commercial Code, and other
unorthodox utterances. Viewing the evidence in the light most favorable to the
government, see Chischilly, 30 F.3d at 1150, we conclude that the district court did
not clearly err in finding Barajas-Cuevas competent to stand trial.
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II.
Nor did the district court err in permitting Barajas-Cuevas to represent
himself. "[A] trial court may insist on representation for a defendant who is
competent to stand trial but who is suffering from a severe mental illness to the
point where he is not competent to perform the more arduous task of representing
himself." United States v. Johnson, 610 F.3d 1138, 1144-45 (9th Cir. 2010) (citing
Edwards, 544 U.S. at 178) (emphasis added). We have not addressed the question
of when, if ever, a trial court must insist on representation for such a defendant.
See id. at 1145. We need not reach that question here, however, because the
district court did not clearly err in finding that Defendant was competent to
represent himself. See id. at 1145-46.
United States v. Ferguson, 560 F.3d 1060 (9th Cir. 2009), does not compel
a different result. In Ferguson, we remanded because the district court had not had
the benefit of Edwards and thus had not considered the defendant's competency to
represent himself as an inquiry separate from his competency to stand trial. Id. at
1070. In the present case, the district court did consider the two competency
inquiries separately. Immediately following its oral ruling that Barajas-Cuevas
was competent to stand trial, the district court conducted a Faretta 2 hearing. After
2
Faretta v. California, 422 U.S. 806 (1975) (establishing a defendant's
constitutional right to represent himself when he voluntarily and intelligently elects
4
noting that the BOP evaluation did not suggest any mental disorder that would
prevent Barajas-Cuevas from waiving his right to counsel, the court solicited the
opinion of the public defender then representing Barajas-Cuevas, who agreed that
Barajas-Cuevas was competent. The court also engaged Barajas-Cuevas in a
lengthy colloquy, which culminated in the court's finding that although he has a
different view of the justice system than most, Barajas-Cuevas was articulate,
intelligent, and mentally competent.
Barajas-Cuevas contends that the district court failed to address how he
would perform particular trial tasks - "organization of defense, making motions,
arguing points of law, participating in voir dire, questioning witnesses, and
addressing the court and jury" - identified in a parenthetical to a case citation in the
Edwards decision. Edwards, 554 U.S. at 176 (citing McKaskle v. Wiggins, 465
U.S. 168, 174 (1984)). However, nothing in Edwards suggests that a district court
must make such specific findings. Barajas-Cuevas also asserts that the district
court failed to take into account his "bizarre" and "perplexing" behavior and his
obvious inability to present viable legal arguments. The record reflects that the
district court did consider Barajas-Cuevas's "UCC defense" and unorthodox
utterances in concluding that Barajas-Cuevas was competent to represent himself.
to do so).
5
We find this case to be materially indistinguishable from Johnson, in which we
held that "[i]n the absence of any mental illness or uncontrollable behavior, [the
defendants] had the right to present their unorthodox defenses and argue their
theories to the bitter end." Johnson, 610 F.3d at 1147.3
III.
Finally, the district court did not abuse its discretion in sentencing
Barajas-Cuevas to fifty-one months imprisonment. See United States v. Autery,
555 F.3d 864, 871 (9th Cir. 2009) ("the substantive reasonableness of a sentence -
whether objected to or not at sentencing - is reviewed for abuse of discretion").
Barajas-Cuevas contends that the sentence is substantively unreasonable because a
prior drug conviction that increased his offense level was stale and because the
district court failed to consider all relevant factors. Those contentions are belied by
the record. The district court noted at the sentencing hearing that Barajas-Cuevas
had been convicted in 2000 of a felony drug offense, and that shortly after
completing his sentence he began a series of attempts to reenter the United States
illegally. The court concluded that Barajas-Cuevas had demonstrated a willingness
3
At the time that the district court conducted the Faretta hearing, it appeared
that Barajas-Cuevas intended to go to trial. Barajas-Cuevas changed his plea to
guilty on the first day of trial. We note that competency to plead guilty is
measured by the same standard applicable to competency to stand trial. Godinez v.
Moran, 509 U.S. 389, 398 (1993).
6
to violate the law, and that the sentence imposed must have a deterrent effect as
well as reflect the seriousness of the offense. The sentence is at the low end of the
advisory Sentencing Guidelines range of fifty-one months to sixty-three months. It
is substantively reasonable in light of the totality of the circumstances and the
sentencing factors set forth at 18 U.S.C. § 3553(a). See United States v. Carty, 520
F.3d 984, 993 (9th Cir. 2008) (en banc).
AFFIRMED.
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