FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10557
Plaintiff-Appellee,
D.C. No.
v. 2:13-cr-00210-JAM-1
DANIEL L. BONNETT,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted September 13, 2017
San Francisco, California
Filed October 10, 2017
Before: Mary M. Schroeder and Richard C. Tallman,
Circuit Judges, and Robert H. Whaley,* District Judge.
Per Curiam Opinion
*
The Honorable Robert H. Whaley, United States District Judge for
the Eastern District of Washington, sitting by designation.
2 UNITED STATES V. BONNETT
SUMMARY**
Criminal Law
Affirming a sentence for receipt and distribution of child
pornography, the panel held that malingering may support an
obstruction of justice enhancement pursuant to U.S.S.G.
§ 3C1.1.
The panel explained that without any factual objections to
resolve, there was no violation of Fed. R. Crim. P. 32. The
panel rejected the defendant’s challenge to an enhancement
pursuant to U.S.S.G. § 2G2.2(b)(3)(B) (2015) for distribution
of pornography for a “thing of value.”
COUNSEL
Michael B. Bigelow (argued), Sacramento, California, for
Defendant-Appellant.
Matthew G. Morris (argued), Assistant United States
Attorney; Camil A. Skipper, Appellate Chief; Phillip A.
Talbert, United States Attorney; United States Attorney’s
Office, Sacramento, California; for Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. BONNETT 3
OPINION
PER CURIAM:
Daniel Bonnett appeals his sentence following his guilty
plea to one count of receipt and distribution of child
pornography under 18 U.S.C. § 2252(a)(2). He received a
below guideline sentence of 15 years’ imprisonment followed
by 25 years of supervised release. He challenges the two-
level adjustment for obstruction of justice pursuant to
U.S.S.G. § 3C1.1 and the five-level enhancement for
distributing child pornography for a thing of value pursuant
to U.S.S.G. § 2G2.2(b)(3)(B).
The issue of first impression in this Circuit is whether an
obstruction of justice enhancement may be founded upon a
finding of malingering. The basis for the finding in this case
was the court-ordered Psychiatric Evaluation that concluded
Bonnett was feigning incompetency. Supporting the district
court’s finding of intentional malingering were observations
that his institutional behavior differed when he was dealing
with medical personnel than when he was interacting with
other staff or fellow inmates, as well as his refusal to
participate in the tests and medical examination intended to
assist in the evaluation of his mental condition. Bonnett also
refused to complete tests specifically designed to check for
malingering and made damaging admissions on recorded jail
phone calls with his wife.
In his briefs, Bonnett nonetheless contends that permitting
an obstruction of justice enhancement on the basis of his
performance in a competency evaluation chills his exercise of
the right to obtain a competency hearing. This is the same
argument that has been raised and rejected in at least four
4 UNITED STATES V. BONNETT
other Circuits. See United States v. Wilbourn, 778 F.3d 682,
684 (7th Cir. 2015); United States v. Batista, 483 F.3d 193,
197–98 (3d Cir. 2007); United States v. Patti, 337 F.3d 1317,
1325 (11th Cir. 2003); United States v. Greer, 158 F.3d 228,
236–38 (5th Cir. 1998). The lead decision is Greer, which
relied on the Supreme Court’s decision in United States v.
Dunnigan, 507 U.S. 87 (1993). There, the Supreme Court
upheld an obstruction enhancement for a defendant who had
committed perjury. Dunnigan, 507 U.S. at 96. The Supreme
Court held that the enhancement was justified on the basis of
the defendant’s conduct. Id. at 95–96. The Court held further
that the enhancement did not chill the right to testify on one’s
own behalf, because a defendant’s right to testify does not
incorporate a right to lie. Id. at 96.
The Fifth Circuit in Greer pointed out that a defendant
similarly has the right to ensure his competency to stand trial,
but he does not have the right to pretend he is not competent
to stand trial. 158 F.3d at 237 (“While a criminal defendant
possesses a constitutional right to a competency hearing if a
bona fide doubt exists as to his competency, he surely does
not have the right to create a doubt as to his competency or to
increase the chances that he will be found incompetent by
feigning mental illness.”). The other Circuits have followed
suit. See, e.g., Batista, 483 F.3d at 197 (rejecting defendant’s
claim that obstruction enhancement based on malingering
would chill his right to have a competency hearing).
We join the other Circuits in holding that malingering
may support an obstruction of justice enhancement pursuant
to U.S.S.G. § 3C1.1. The government has correctly pointed
out that this conclusion is a corollary to our previous holding
that refusal to participate in court-ordered testing can support
UNITED STATES V. BONNETT 5
such an enhancement. See United States v. Fontenot, 14 F.3d
1364, 1372 (9th Cir. 1994).
Bonnett also contends that the District Court failed to
resolve factual disputes pursuant to Federal Rule of Criminal
Procedure 32. While it is true the District Court made no
factual findings, this was because the defendant did not
dispute any facts contained in the Presentence Report or the
Psychiatric Evaluation. He had a full opportunity to review
both. The factual basis for the malingering enhancement was
apparent from these documents. Without any factual
objections to resolve, there was no violation of Rule 32.
Bonnett additionally challenges the enhancement for
distribution of pornography for “a thing of value.” See
U.S.S.G. § 2G2.2(b)(3)(B). Because the District Court
sentenced Bonnett on November 17, 2015, we apply the 2015
Guidelines Manual. See U.S.S.G. § 1B1.11(a). The record
shows that Bonnett traded child pornography portraying
young girls for child pornography portraying young boys.
The online references to trading “girl stuff” for “boy stuff”
are clearly indicative of such a trade, and one involving items
of value. There was no objection to the underlying facts as
described in the Presentence Report and hence, again, no
violation of Rule 32.
Accordingly, Bonnett has no legal or factual basis to
challenge either the obstruction of justice or pornography
distribution enhancements. His sentence is AFFIRMED.