this matter back to the district court for two purposes the chief purpose is to evaluate known proton the capacity of my client to have entered her plea at the time when she did so the case presents a little bit of an unusual time lapse  in between the time during which she entered her plea and when she was ultimately sentenced it was about a year time during that period of time ms allen received some treatment and a diagnosis while incarcerated of bipolar disorder that's relevant because that was known to the district court at the time of sentencing also known to the district court at the time of sentencing was that ms allen had switched attorneys her prior attorney the attorney that shepherd her through her plea was granted permission to withdraw from what he termed irreconcilable differences there was no hearing on the matter there were no facts disclosed in motion that revealed what those differences were or the nature of the conflict you said there were and there were not your own furthermore upon the appointment of new counsel his first act appeared to be to file a motion to withdraw her plea that motion to withdraw the plea was subsequently withdrawn prior to the sentencing none of this not a single word of it was discussed during the sentencing at all admitted counsel new counsel didn't bring it up but the district court did not inquire at all about the machinations in the docket prior to sentencing i find that troubling furthermore explain to me why you find it troubling but we've been district judges there are there are dozens and dozens of cases where there are requests to withdraw plea is there there file there withdraw and in the meantime their arguments with counsel sometimes counsels replace sometimes it isn't i had i just don't see the basis of your suggestion that that's even troublesome it's frankly rightly or wrongly kind of routine indeed your honor and i don't only thing that you add to the mix and this one is that she's bipolar which probably describes what what happened half of the defendants that we see your honor i don't know and i think that's that's part of our argument is i don't know the district court didn't know and i don't know that that's the kind of thing that the courts ought to speculate about but tear your broader point your honor my purpose here is not to cast aspersion on this record and frankly  i'm not even arguing that we have a sufficient record here to declare competency or incompetence i think that's a bridge too far however what i find troubling is that i think the case law here has developed a concept that's akin to sort of the procedural reasonable this concept of this court is routinely presented in that this body needs to have an adequate record upon which it can conclude whether there was competence throughout the process and what i find troubling about the district court's lack of  inquiry here is not so much what that inquiry would have unearthed i have my personal opinion on it but that's irrelevant it's that what we don't have is a clear record a clear record establishing that there was capacity for my client to have a very significant play a plea that resulted in a over ten year sentence with a six year period of supervised release to follow furthermore i don't think the bible that wouldn't it be safe to say that the lack of a record more often than not could come from a number of different sources it could come from somebody a being asked to do something and not being permitted to do it that didn't happen here it could be because the lawyer is incompetent that normally we would use something as you know we take up in the a b s it but those are the those are the two that come readily to mind we don't have any of that normally when somebody wants to do over they come to us with some sort of evidence you don't have any evidence you don't have a you don't have a doctor that says well i haven't had a chance to examine her but geez i think under these circumstances there really is a legitimate question of competency with all due respect what do we have aside from your lawyers concern i think you've expressed i think we have several things your first of all we did what we have is a record that does not demonstrate through her which her response to the court was yes yes or no no sir pray on that no it doesn't affirmatively show it to there's nothing that makes you doubt it either well i think you have the statement of her her new attorney in sentencing in wh she says i believe my client to have been mentally ill for years you have the assertion in the in the memorandum in support in the way he said that he believed she was mentally ill for years and finally got diagnosed but he doesn't say and i don't think she was competent well again more or there's reason to think she wasn't competent or i'm speaking to her now and i question whether conclude is anything about competence one way or the other and i don't think that the question of the case was fairly clear in that the question of competence is distinct from the question of whether there is a sufficient set of circumstances to warrant an investigation it may well be your honor that upon reevaluation there is an examination performed or a couple of examinations they confirm her competence and the matter is is addressed in that way i don't know let's go to the plea colloquy yes seem to have some significance to that i agree with you that when you look at the at the transcribed proceedings it's a series of through they ask a series of questions that are designed to elicit yes or no answers so and that's exactly what happened here now what the transcript doesn't reveal that the district judge did see was her demeanor and her reaction to these questions so if somebody stands there and says yes your honor no your honor yes and they say they're looking you in the eye it seems to me you can draw one conclusion from that the that we can see on the record  the other one would be the the person stumbles the person pauses the person looks to his or her attorney and he says yes all those conflicts that we've all seen none of which are going to be demonstrated by the record by the transcript itself and for which we don't have any evidence in this record that her her yeses are anything more than a full understanding unequivocal yes so what do we do with that well i think it's relevant that at the time of the of the plea colloquy the court was not possessed of the knowledge that she did have a mental illness so perhaps the court was not as on guard or watching for behaviors that might be quite in possession yet of anything that says she has a mental illness well to that point your honor and i think this is also relevant the court did order that she received a mental health examination and treatment once incarcerated and so to that point what i think we can glean from that is the district court must have been sufficiently convinced that there was something to be you waited and treated and that's right at the end of the sentencing hearing so so this pro it's ok to do it once she's in jail proposition would be that if you order that just not unusual on a sentencing therefore that's going to be evidence that later on you should have done a competency hearing but we're going all the way back to the entering of a plea well i think it also works and in the context of how we got to the point that there was not any expression of a medical opinion in our record i think it appears clear from both transcripts that the that my client's trial counsel did not request that there be an evaluation performed but what the district court did with that however is construe that as in some ways a tacit waiver of that issue in fact the district court at the end of the sentencing hearing refers to it as a quote non issue because my client's trial counsel didn't file a motion says something to the effect of we didn't bring that up to me so that's a non issue and in fact an issue because he didn't bring it up and there wasn't any evidence apparent to the judge that that the judge should have should have brought it up your honor had the judge said what you just said i think the record would be much different the judge doesn't say that and this body i don't think can infer the latter part of that something you want judges to be required to make affirmative statements of what they're not doing i think when there is sufficient basis for there to be some question reasonable question regarding competency or capacity when you've had an interesting diagnosis of a mental have as we have here when you have an individual why do you keep saying that it's a diagnosis of a mental illness that is what is demonstrated by the record that we have and the fact that the person is bipolar and is being successfully treated with medication as far as we know means she is mentally ill absolutely not your honor but it means that there was at least a diagnosis made while she was incarcerated she had been receiving treatment my understanding again from the scant record is that that treatment concluded at some point prior to her sentencing because she was moved from the facility where she was receiving the treatment i see my time has expired me if she had been moved from the facility where she'd been receiving treatment to a different facility pending sentencing so i was and it's unclear from the record whether she was receiving treatment at the time of sentencing but it is it is clear that the the new attorney did not request that evaluation right that's correct not question her competence there does not appear to be there's no suggestion of it in the transcript and there are numerous motions filed in the record that's correct and ok i just would like to hear your position on the second  issue thank you your honor the position is simply this i think the court considered mental health in one context and not another as i've already said the district court did grant the request for examination of my client in treatment once departure by the defense counsel that speaks in some context about her past history drug abuse mental health the court imposes sentence gives its bostic instruction and  my client's trial counsel says but iran and respectfully you mentioned you would return to the issue of mental health you never did so that's actually the context in which the court says i consider it a non issue you didn't file a motion i think it's clear what trial counsel was attempting to do there was say you acknowledge there was this distinct portion of the nature and characteristics of the defendant that sings to the issue of mental health you were going to return to it we kind of got lost in the sauce you never did that and i think that the record is clear in that regard that that wasn't that isn't what occurred the government i think takes the position that well it did consider her mental health for purposes of post incarceration treatment but those are distinct in the in in thirty five if your argument is that even when he did return to it he never addressed her legitimate argument in the context of her her history and circumstances yes ron thank you your honour's may it please the court my name is corey shipping i represent united states in this case i want to talk a little bit about what the on the defendants brief and some of the issues that we have already touched this morning but it seems as though th defendant in this case is trying to conflate two separate terms when we're talking about mental illness on one side and incompetence on the other and that's not what this case is about this case is about when a district court should sue a sponte step in and look at the record look at the evidence or the record that it has in front of it to see whether or not there is evidence of incompetence the district court has no duty to do further investigate and as as as as judge mckeague has already said this morning that the bare record that this court has as opposed to the district court's actual findings in real time is a poor substitute and that's exactly what happened in this case the district court in this case was in the best position to look and see if there incompetence and your honour's there is no error here no such set of circumstances existed in this case that would cause a court to reasonably believe that there was an issue as to the defendant's competence and to touch on a few things that have not been stated in may fall outside of the record because i understand that's not something this court can consider but stuff that's within the record i'd like to address a few things there that actually show the court i should say the antithesis of incompetence when we look at the record that this court has in front of it and the indicia of the the defendant's confidence in this case we look back to the actual there were jail phone detailed account of what actually happened in this case she discussed pricing terms she discussed numbers and she also discussed the communication that she had with various other dealers going a step further in the investigation in a criminal chronological order we have a cell phone search that took place in this case that's referenced in the police and we have a chain of text messages that are in excess of twenty two different people th show the show her her level of mental acuity basically showing the how she did this she was organizing this drug distribution ring furthermore going on down the line we have heard her or had the fact that she did brief numerous times and during her debris she gave she continued to give a detailed account of her involvement in the conspiracy and also her involvement i was consistent with being a little man honor and yes and but we have that we have her sit her statements that show exactly what what it what is going on and that was enough for the you know for the government to actually step in in this case and actually look at her testimony evaluate it in real time and decide that there would be some type of downward departure given in this case and they took it even a step further it was not strictly on her basis of her debriefs that she gave in the past it was actually it was actually even further that she was willing to testify and you know your honour's that this is the you know the government is not in the business of convicting people that are incompetent and the actual real time evaluation was that she was competent that she had her but she was up for possession of her medical mental faculties as a district court said you know during her police colloquy that actually they said that the police and the united states were actually going to use her as a witness at trial if needed now what happened was in the case believe humans were entered and she was not needed at trial where did the court address her argument that because of this undiagnosed condition or the the argument that her mental illness played a big role in this and it was untreated and so that that was another reason to for a little bit of a departure you want to i don't know  that that the court in that case actually said you know the mental illness was a an actual reason that factored into the departure but also this court has said numerous times and cases that when the district court is presumed to have proved to have actually considered all the to be clear that the judge considered and frivolous argument and i don't see where the judge addresses it addresses the argument that her or her diagnosis and her situation supports a downward departure i don't see where he considered that when you show me in the record you're going to store as him actually saying he considered the mental illness or the i think when we talk about is a non issue i think you can interpret that multiple ways i think him saying that as as your honor stated before about the non issue of the factor i think when he you can interpret it a couple different ways and he says it's a non issue when confronted with that with the question you know during the sentencing during the sensing hearing we confronted with that question saying it was a non issue you know that was something that was was argued in the sensing memorandum of the defendant and the court considered that with the evidence it had before the court and it was presumed to have considered everything there so it's actually virtually stating that on the record i don't i don't think the court actually verbally stated that on the record but in this case here i'm not sure that not sufficient to warrant this court to actually say that the defendant was incompetent numerous cases such united states v stafford back in two thousand and fifteen this court was this court was talking about confidence strong i'm talking about the sentence  i just was asking whether ok i mean where the court addressed it with regard to our sins of understanding your honor's question correctly with regard to her sentence and whether or not that was sufficient grounds for an additional departure guess i don't think the court actually fully stated or addressed that and like i said your honor respectfully you know i'm not sure that in cases like this i'm sure the you know the court is required to actually address and you know per united states v judge the court is not required to address every single argument of the defendant that the defendant raises you don't hear the record shows that the you know the district court know correctly calculated the guideline range in this case and we had a one hundred eighty eight to believe a two hundred thirty five or two hundred thirty seven guideline range and furthermore with regard to that specific sentence in this case that was imposed we have a one hundred fifty one  imposed and also it's very clear that a sentence that's below the guideline range well excuse me back up one second ascends as this court knows a sentence that's within this guideline range is presumed to be reasonable and the burden is even higher for defendant when they when a sentence is actually far far below the actual advisory godling range which it was thirty seven months below the actual dialing range in this case why wouldn't the way to look at this be to say that that the judge  certainly on the record said that he understood she had mental health problems whatever they were he he departed the word he he denied her request for a for an additional downward departure seems to me your argument would be that that while he didn't say why he's he's implicitly ruling on this question the judge what is asking in denying her motion for an additional dollar departure your honor i think that's absolutely correct with i guess the argument would be we don't really know whether he's denying it because he didn't think that she had him any mental problems although that doesn't seem right because he just acknowledged just before that that she had them or he determined that it already been taken into account adequately in the departure that is already granted you want i think that was what i was actually trying to get to and i'm saying there's multiple ways to actually view how the term you know quote unquote non issue when he stated that in the sentencing hearing and i think that you can reasonably infer from that that the court had already considered that and deemed it not to be a issue that the court would not consider or refuse to consider but a issue that the court considered and deemed it to be not an issue that was a political to an actual  further a departure in the case really just comes down to how much more specific we're going to require district judges to be and this court i would say hasn't been real consistent on that and you're on your own i think that goes back to the to the statement that i actually you know started my argument with in the in the stafford case back in two thousand and fifteen when this court has made it very clear and what in and what you yourself addressed earlier it's you know the bare record that we have in this that this court reviews and when the court the court does not have the luxury of actually looking at the defendant in this case the court has a bare record to review in this case that's not a good answer that's not the answer to a question or question and goes beyond that and says hey  sentencing there's this issue and he doesn't specifically say what he did with the issue other than the deny the motion in your own of that what you know my my response to that again would be that you know it's not it's not incumbent on the district court to actually address every single issue that the that the defendant raises everything but the court is presumed innocent in this case are presumed and every case that to have considered each of the defendant's argument and that in this case here is exactly what he did wh be a non issue that was actually stated on the record him saying that he did not fire cindy meehan on issue it's reasonable to infer that he did not find enough or of fun nothing disha of it of any mental illness that would warrant a further departure of the case you want to when you're honest when looking at a case such as this where there is so much contingent on the lower courts discretion you know this court has stated that the district court is in the best position to actually view the there is nothing in this record before this court even even your defense even though the opposing counsel states that you know there is nothing in this record or i think you stated if i'm not mr you know mr misrepresenting he said there is not enough in the record to establish competency or incompetency as a state but he said earlier you know you might you know i think the analysis could all of us in there because the district court is not under a duty to investigate  further to the district court has what it has in front of a to look at to see whether or not there is common it's whether or not there is a question of incompetency and i think that opposing counsel i both agree upon the test of this court in the in the village a case that said what this court should look at and it's whether that's and as i said the they the defendant in this case would want the district court to further investigate and do do do watch further than what is required of the court but the no that is not the standard here the standard for this court to look at you know authored that opinion and stated when something is not raised such as competence in that case because there was an issue of competence in that case about think there was even a they were pro se but it was an issue of of the defendants in that case making statements about being  protesters and everything else there was not a competency issue raised at the lower court and this court stated that in that case that the this court would actually review that when something is not brought to the court's attention that this court would actually review that for playing there have thank you thank you want to answer your question i submit to you that you won't find evidence of that in the record that is our that is our secondary argument and it is compelled by thirty five fifty three one that there be an adequate representation in the record of that consideration in circumstances where it is relevant as a as a component of the nature of characteristics of the defendant is it really fair to say that it isn't in the record because the judge just does say there was no request for a competency evaluation so that's that's a non issue we can argue about what that meant or not meant but it seems to me a reasonable inference is he doesn't find any evidence of there being incompetency now having said that he then moves on to sentencing which is what judge which question was in did he then have to say more in connection with why he wasn't further departing because of an issue for which there was no evidence in the record why would you be required to repeat that again i think there's two ways to construe it and you're well aware of the body of case law that says that a further downward departure is is a is a tough road for an appellant to travel i don't know that that's our argument or argument is as a predi matter early on in his sentencing discussion of the thirty five fifty three factors a one he says we've got a mental health issue here we're going to get to that later so he sort of tables it puts it aside in the context of the initial evaluation for purposes of sentencing of the thirty five fifty three they then delve into the downward departure discussion and when after bostic defense counsel raises the issue again hey judge you know i don't know that you you you articulated your consideration prior to your announcement of your initial sentence on the court says it considered it a non issue so i think there are two ways of looking at it and our position is your honor that that they they tabled that the district or table discussion as i say sort of got lost in the sauce of the rest of the of the context of the sentencing hearing and never return to it even when requested to do so we did return to it you still like the answer i well i don't like the answer your honor but i don't think he returned to it  context i respectfully disagree in that regard i think he returned to the issue of mental health i think he espoused some general observations i think he talked about having a sufficient confidence that she had difficulties that would compel her to need an examination and treatment once she's in jail and again i still think and i want to return to something that counsel said relative to the duty upon the district court i think the government and we disagree in this respect to the assertion was made  i'm paraphrasing that the district court isn't under a duty to look further when it's not requested that's not that's not the law i cite the statute the district court has an obligation moving forward throughout the proceedings through sentencing to ensure the capacity of the competency of person that stands before i also think it's relevant here with a lot of discussion about the facts that could have been brought to bear at trial this didn't go to trial so you know in its in its core what we're also talking about here is a knowing voluntary and intelligent waiver of one's right to trial and when you consider competency in the context of that very significant waiver even for a person where there is no evidence of incompetency we have convictions  come before district courts every day in which folks aren't burdened with mental illness and there is an exacting review of whether there's a knowing voluntary an intelligent way for this speaks to that issue as well we have a person where there is a diagnosis of bipolar disorder manic episodes can certainly occur when it's undiagnosed particularly when you have drug use and you have that person at some discreet point in time waving all of these rights waving their right to trial waving their right to defend themselves i think that's relevant and i think it's distinct from a question of capacity generally