United States v. Douglas Lopez-Vivas

FILED
NOT FOR PUBLICATION DEC 03 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10306
Plaintiff - Appellee, D.C. No. 4:13-cr-01677-JGZ-JR-1
v.
MEMORANDUM*
DOUGLAS ENRIQUE LOPEZ-VIVAS,
AKA Sergio Ernesto Velasquez-Flores,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 14-10307
Plaintiff - Appellee, D.C. No. 4:14-cr-50002-JGZ-JR-1
v.
DOUGLAS ENRIQUE LOPEZ-VIVAS,
AKA Sergio Ernesto Velasquez-Flores,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted November 18, 2015
San Francisco, California
Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.
Douglas Enrique Lopez-Vivas appeals his conviction under 8 U.S.C. § 1326for illegal reentry, as well as the revocation of his term of supervised release
imposed pursuant to a prior illegal reentry conviction. We have jurisdiction under
28 U.S.C. § 1291 and affirm his conviction and the revocation of his supervised
release.
A district court’s failure to sua sponte hold a competency hearing is
reviewed for plain error. United States v. Garza, 751 F.3d 1130, 1134 (9th Cir.
2014). We review the district court’s admission of prior acts evidence under
Federal Rule of Evidence 404(b) for abuse of discretion. United States v.
Hardrick, 766 F.3d 1051, 1055 (9th Cir. 2014).
It would be plain error to fail to hold a competency hearing where “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. Dreyer, 705 F.3d 951, 961 (9th Cir. 2013) (internal citation and quotation marks
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omitted). To raise such a 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.” Garza, 751 F.3d at 1134 (internal citation and quotation marks omitted)
(emphasis in original). To assess the situation, we look at three categories of
evidence: the defendant’s medical history, the defendant's behavior in and out of
court, and the defense counsel's statements about the defendant's competency. Id.
The district court did not commit plain error in failing to hold a sua sponte
competency hearing. There was no medical history evidence of any mental disease
or defect. See id. at 1135 (“[A]n appellant who has absolutely no medical history
evidence indicating incompetency will almost certainly fail to upset his
conviction.”); United States v. Neal, 776 F.3d 645, 655-56 (9th Cir. 2015) (“A
defendant must present ‘strong’ medical evidence of a serious mental disease or
defect before a genuine doubt about competency will arise.”) (citation omitted).
Lopez-Vivas’s behavior in and out of court was not so erratic that it would
cause a judge to doubt his competency. Id. at 657 (“[C]ompetency will not be
questioned when a defendant merely displays rude, uncooperative and sometimes
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wacky behavior.”); cf. Maxwell v. Roe, 606 F.3d 561, 570-71 (9th Cir. 2010)
(competency should have been questioned where defendant attempted suicide
during trial); Tillery v. Eyman, 492 F.2d 1056, 1057-58 (9th Cir. 1974)
(competency should have been questioned where the defendant’s outbursts
included laughing at the jury and ripping off his clothes during trial, and screaming
from his jail cell throughout the night). Though he did not always obey the district
judge’s instructions when speaking in court, Lopez-Vivas’s conduct was not so
bizarre as to require a sua sponte competency hearing. Neal, 776 F.3d at 657.
Lopez-Vivas evidently believed that receiving enhanced sentences on two prior
occasions on account of his assault with a deadly weapon conviction was unfair
because he had already served his sentence for the original crime. He also believed
that he had been improperly deported on two prior occasions. Accordingly, his
decision to forgo a plea offer and his decision to offer unsolicited testimony about
his prior conviction for assault with a deadly weapon were not irrational. See
United States v. Mendez-Sanchez, 563 F.3d 935, 947-48 (9th Cir. 2009). His
actions comported with his not irrational feelings about what was fair, which a jury
inclined toward nullification might accept.
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Finally, Lopez-Vivas’s counsel never expressed any concerns about his
competency to stand trial or receive his sentence. He expressly said there were no
competency issues with Lopez-Vivas. 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.”). The district court judge noted
Lopez-Vivas got along well with his counsel.
The district court did not abuse its discretion by admitting evidence of
Lopez-Vivas’s prior convictions for illegal reentry. Lopez-Vivas testified that he
mistakenly entered the United States. The Government sought to introduce his
prior convictions as evidence of a lack of mistake and to impeach his testimony to
the contrary. Thus, the convictions were relevant as something other than
propensity evidence and they were admissible under Rule 404(b). Fed. R. Evid.
404(b)(2); see United States v. Verduzco, 373 F.3d 1022, 1029-30 (9th Cir. 2004)
(evidence of prior similar convictions was properly admitted as relevant to rebut
affirmative defense of duress).
Lopez-Vivas’s counsel never challenged the admission of the convictions
under Rule 403, and the district court’s decision to admit the evidence was neither
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an abuse of discretion nor plain error. See United States v. Gomez-Norena, 908
F.2d 497, 500 (9th Cir. 1990) (noting we review the district court’s ruling for plain
error where a party fails to preserve a specific evidentiary issue for appeal). We
presume the district court applied the proper Rule 403 balancing, particularly
where it had previously weighed admissibility of the same evidence under Rule
609. See United States v. Cruz-Garcia, 344 F.3d 951, 956 (9th Cir. 2003). The
evidence was not especially prejudicial in the context of this case. See United
States v. Flores-Blanco, 623 F.3d 912, 920 (9th Cir. 2010) (prior acts evidence was
not unduly prejudicial where it was probative of the defendant’s knowledge and
intent, the evidence would not provoke an unfairly emotional response in the jury,
and the court gave a limiting instruction).
Because we affirm Lopez-Vivas’s conviction for illegal reentry, revocation
of his prior term of supervised release was not error.
AFFIRMED.
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