United States Court of Appeals
For the First Circuit
Nos. 07-2225, 07-2226
UNITED STATES OF AMERICA,
Appellee,
v.
RAÚL FIGUEROA-GONZÁLEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Dyk* and Thompson,
Circuit Judges.
Juan F. Matos de Juan, by appointment of the court, on brief
for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
on consolidated brief for appellee.
October 7, 2010
*
Of the Federal Circuit, sitting by designation.
BOUDIN, Circuit Judge. Raúl Figueroa-González
("Figueroa") was charged, in two separate indictments, with four
counts of carjacking, 18 U.S.C. § 2119(1) (2006), and four counts
of use of a firearm during and in relation to a crime of violence,
id. § 924(c)(1)(A). The two cases were eventually consolidated for
change-of-plea and sentencing, and Figueroa then pled guilty to
three counts of carjacking and one of firearm use. He now appeals
the conviction, contesting the district court's finding of
competency.
The issue of Figueroa's competence arose during plea
bargaining, and the government, pursuant to 18 U.S.C. § 4241(a)-
(b), requested a comprehensive mental evaluation at a federal
medical facility. In response, the district court appointed
forensic psychiatrist Cynthia Casanova Pelosi and--on Casanova's
recommendation--clinical psychologist María Teresa Margarida Juliá;
both evaluations were conducted at a local detention center, rather
than a federal facility.
Margarida's neuropsychological evaluation in March 2006
noted Figueroa's clinical history of mental retardation and
included intelligence test results that indicated moderate
cognitive impairment and an IQ of 47. However, she also reported
that Figueroa showed "variable effort throughout the test, which
means that his performance is probably not an accurate
representation of his optimal capacity." Taking that factor into
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account, she still placed him in the "mild to moderate range of
mental retardation." She concluded:
[Figueroa's] neuropsychological status reveals
a diminished capacity and limitations in his
ability to assist in the process of his
defense and understand the process of a trial,
but does not impair him from being able to
understand the nature of the accusations and
charges against him. He can be assisted to
compensate for his cognitive limitations by
the use of memory aids . . . .
Casanova's forensic psychiatric report was based on a
two-hour interview with Figueroa, interviews with his father and
defense counsel and her review of documents. Based on the
information collected1 and her own evaluation, Casanova concluded
that Figueroa "is barely able to understand the charges pending
against him and possible consequences but is not able to cooperate
with counsel in his defense, nor able to follow and participate
during court procedures in an efficient manner."
The government disagreed, citing the "degree of
leadership, participation and conduct" Figueroa exhibited:
obtaining and using weapons, leading a violent gang, participating
in home invasions and carjackings, preventing victims from alerting
authorities, abusing and threatening victims, taking hostages,
1
Figueroa's lawyer told Casanova that "when he tries to
explain the charges, possible consequences and alternatives such as
plea bargains, [Figueroa] remains mute, [claims] not to remember
things and occasionally cries." Figueroa denied knowing the
circumstances leading to his arrest, the penalties related to the
charges, the name of his lawyer, or what a district attorney or
jury would do.
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driving vehicles, demanding ATM withdrawals, and abandoning victims
in deserted areas. The government sought a comprehensive
evaluation in a federal facility to which the court agreed, but in
the meantime it proceeded with a scheduled competency hearing.
At the April 7, 2006, competency hearing, Carlos E.
Roscoe, a member of the FBI carjacking task force, testified. He
described Figueroa as striking a victim and a reluctant co-
conspirator, forcing victims to withdraw money from ATMs,
organizing a group for robbery, giving orders to others,
communicating directions through hand signals, issuing death
threats, and being involved in drug sales.
Margarida was unavailable, so the only other testimony
came from Casanova. She stated that Figueroa has tested to have
"between moderate to mild mental retardation" and after hearing the
FBI testimony she would lean towards mild retardation rather than
moderate. She then testified that, in her opinion, Figueroa
understood the charges and possible consequences. He could be "fit
to proceed" only if medicated and given careful explanations of the
plea bargaining prior to the hearing, and he was limited in his
ability to discuss the situation with his lawyer.
Figueroa was then evaluated at the Federal Detention
Center, Miami, Florida, from July 12, 2006, to August 26, 2006.
Based on four hours of psychological testing, a review of records
and interviews of the attorneys and detention center staff,
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forensic psychologist Jorge Luis found Figueroa competent to stand
trial, concluding that "there is no evidence that Mr. Figueroa-
Gonzalez is currently experiencing the active phase of a mental
disorder or defect that would render him unable to understand the
nature and consequences of the proceedings against him at this
time."
Although Figueroa obtained the lowest possible scores for
intellectual functioning, Luis found that the defendant was
malingering--deliberately attempting to perform more poorly than
his actual capacity.2 In addition, Luis believed that the earlier
evaluations were "probably invalid" because Margarida's report
suggested malingering and because she did not follow the
standardized administration of the test.
On January 25, 2007, the district court attempted to hold
a change of plea hearing. Figueroa complained of his counsel's
performance in relation to the calculation of his sentence,
exhibiting what the district court took to be a cogent
understanding of a complex sentencing matter. The district court
agreed to replace his counsel, and noted that Figueroa was "a lot
2
For example, Luis reported that on one test Figueroa's
performance was "consistently poor on the easiest items and his
performance improved as item difficulty increased." On another
test, "his scores were significantly below chance levels of
responding and significantly below the results obtained in
genuinely impaired individuals. This suggest[s] that the defendant
attended to the questions, understood the content, scanned for the
correct response, and purposely chose the incorrect responses on a
consistent basis."
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more capable than we think" given his ability to understand the
issue, which had been discussed entirely in English.
At a new hearing on March 22, 2007, Figueroa stated that
he was competent, and his counsel stated that he "had been able to
establish . . . effective communication with [Figueroa]" and that
he had "no doubts . . . that he understands what he is doing and
that he is, in fact, competent." Figueroa then pled guilty to
three counts of carjacking and one of firearm use. He was
sentenced to concurrent 18-year sentences for the carjacking counts
and a consecutive 7-year sentence for the firearm count.
The only argument Figueroa raises on appeal is whether
the district court erred in finding him competent to plead guilty.
This court raised a second issue sua sponte as to whether the
sentence for the firearm count was properly based on brandishing,
for which a 7-year sentence is a mandatory minimum, 18 U.S.C. §
924(c)(1)(A)(ii), but both parties agree that the facts in the
record clearly indicate brandishing so we need say no more about
that issue.
Figueroa's appellate brief suggests two legal bases for
his competency claim: that Figueroa's alleged actual incompetence
at the time of pleading violated his substantive due process under
the Fifth Amendment and that the court violated Federal Rule of
Criminal Procedure 11. But the latter consists solely of the claim
that Figueroa was not competent to plead or be sentenced, cf.
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United States v. Cheal, 389 F.3d 35, 43 (1st Cir. 2004), and so is
subsumed in the former.
Arguably, Figueroa has forfeited or even waived these
claims: his trial counsel raised questions about competency, but
that counsel, his successor, and Figueroa himself each stated
during the change-of-plea hearings that Figueroa was competent and
understood the charges and the plea. Whether a waiver would be
valid if the defendant were incompetent might be debated,3 but
Figueroa's claims would fail even if they had been raised and
maintained throughout the proceedings below.
Figueroa argues that the district court misunderstood the
proper legal standard for competency, a claim we review de novo.
United States v. Wiggin, 429 F.3d 31, 37 (1st Cir. 2005).
"Competence to enter a guilty plea is determined by the same
criteria as those governing competence to stand trial: whether the
defendant is able to understand the proceedings and assist his
counsel with a reasonable degree of rationality." United States v.
3
See Pate v. Robinson, 383 U.S. 375, 384 (1966) ("[I]t is
contradictory to argue that a defendant may be incompetent, and yet
knowingly or intelligently 'waive' his right to have the court
determine his capacity to stand trial."); United States v. Hurley,
63 F.3d 1, 18 (1st Cir. 1995) (same), cert. denied, 517 U.S. 1105
(1996). But cf. United States v. Giron-Reyes, 234 F.3d 78, 80 (1st
Cir. 2000) (reviewing claimed defect in competency proceedings only
for plain error); United States v. Muriel-Cruz, 412 F.3d 9, 11 (1st
Cir. 2005) (same).
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Morrisette, 429 F.3d 318, 322 (1st Cir. 2005). Figueroa asserts
that the district court focused only on "alleged dangerousness" and
had decided in advance that Figueroa was both guilty and competent.
Figueroa points to comments of the judge that suggest
concern about Figueroa's dangerousness and that state that Figueroa
will not be "let . . . loose" or allowed to "walk away," but these
are taken out of context. A careful review of the entire
transcript shows that the district judge did not substitute
dangerousness for the correct standard and did not predetermine the
issue.
Indeed, in its order appointing Casanova, the district
court expressly stated the question to be "whether the defendant
understands the charges against him and is able to assist counsel
in the preparation of a defense." Casanova and Luis' reports both
directly address these issues. And at the competency hearing, the
court asked Casanova a series of questions regarding Figueroa's
ability to communicate with his lawyer and remember his
participation in the criminal acts.
Where the correct standard is applied, we "uphold a
district judge's determination of competency after a hearing unless
clearly erroneous." United States v. Santos, 131 F.3d 16, 20 (1st
Cir. 1997) (citing United States v. Lebrón, 76 F.3d 29, 32 (1st
Cir.), cert. denied, 518 U.S. 1011 (1996)). Here, there was no
error, clear or otherwise. The district court was presented with
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conflicting evidence and chose to conclude that the evidence was
stronger in favor of competency.
It is true that Casanova had initially found Figueroa
unable to assist counsel, and Margarida found him limited in his
ability to assist counsel and understand the trial process.
However, Luis had more extensive observation of Figueroa and found
him competent (and malingering); Roscoe testified as to his ability
to plan, execute, and lead crimes; Figueroa and his counsels
assured the court that he was competent; and the court itself
observed that Figueroa was "a lot more capable than we think."
Choosing to credit the second set of factors falls well within the
court's domain. See Pike v. Guarino, 492 F.3d 61, 77 (1st Cir.),
cert. denied, 552 U.S. 1066 (2007).
Figueroa's brief may imply that the court should have
held a second competency hearing sua sponte after receiving Luis'
report. However, a court generally need not hold a hearing after
a qualified expert has found a defendant competent, United States
v. Bruck, 152 F.3d 40, 46 (1st Cir. 1998); here, Figueroa had not
previously been found incompetent by a court, cf. Giron-Reyes, 234
F.3d at 81-82, and nothing after Luis' report suggested a
deterioration, see Yeboah-Sefah v. Ficco, 556 F.3d 53, 83 (1st
Cir.), cert. denied, 130 S. Ct. 639 (2009).
Affirmed.
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