FILED
NOT FOR PUBLICATION MAY 03 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50180
Plaintiff - Appellee, D.C. No. 2:08-cr-01201-ODW-49
v.
ISMAEL RIVERA, AKA Yo-Yo, MEMORANDUM *
Defendant - Appellant,
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer,District Judges, Presiding
Otis D. Wright, District Judge, Presiding
Argued and Submitted April 12, 2013
Pasadena, California
Before: BERZON and TALLMAN, Circuit Judges, and
ROSENTHAL, District Judge.**
1. Rivera contends that there was no independent factual basis for his guilty
plea, see Fed. R. Crim. P. 11(b)(3), and that the district court failed to determine
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for the Southern District of Texas, sitting by designation.
that he understood the nature of the charge, see Fed. R. Crim. P. 11(b)(1)(G).
Because Rivera did not make these objections before the district court, we review
his Rule 11 claims for plain error. United States v. Escamilla-Rojas, 640 F.3d
1055, 1061 (9th Cir. 2011).
Both contentions lack merit. Judge Fischer conducted a lengthy Rule 11
colloquy in which she took numerous steps to verify Rivera’s understanding of the
charge, and the plea was supported by an independent factual basis. At the time of
the plea, the record included a signed plea agreement in which Rivera stipulated to
the government’s presentation of the facts, and Rivera again assented to those facts
under oath during the change-of-plea hearing. See United States v. Mancinas-
Flores, 588 F.3d 677, 682 (9th Cir. 2009); United States v. Timbana, 222 F.3d 688,
703 (9th Cir. 2000).
Moreover, Rivera has not made any showing, including his own
representation, that “but for the [alleged] error[s], he would not have entered the
plea,” as required on plain error review in the Rule 11 context. United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004).
2. Rivera also contends that Judge Wright plainly erred in failing sua sponte
to conduct a competency evaluation once he received sentencing submissions,
2
including a psychological report, that indicated Rivera has cognitive and memory
impairments.
When evaluating a district court’s failure sua sponte to evaluate the
defendant’s competency, we consider whether “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, No. 10-50631,
slip op. at 20-21 (9th Cir. Jan. 7, 2013) (internal quotation marks omitted). Here,
the district court did not have any evidence tending to raise doubts about Rivera’s
competency prior to sentencing, and the evidence submitted at sentencing did not
rise to a level obligating the district court to conduct a sua sponte competency
evaluation. The sentencing submissions that suggested that Rivera has cognitive
difficulties did not purport to evaluate his legal competency; Rivera’s attorney
repeatedly assured the sentencing court that Rivera was legally competent; and
Rivera participated meaningfully in the sentencing allocution by giving a prepared
statement.
AFFIRMED.
3