### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 13

‐ 3610

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

A NTHONY W ILBOURN

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:01

‐ cr

‐ 00064

‐ RLM

‐ 1

— Robert L. Miller, Jr.

, Judge

.

____________________

A RGUED J ANUARY 27, 2015

— D ECIDED F EBRUARY 13, 2015

____________________

Before P OSNER

, S YKES

, and H AMILTON

, Circuit Judges

.

P OSNER

, Circuit Judge

. The defendant was convicted of

bank robbery by force or violence, in violation of 18 U.S.C.

§ 2113(a), and for brandishing a firearm in furtherance of a

crime of violence, in violation of 18 U.S.C. § 924(c). His ap

‐ peal presents a question that heretofore this court has had no

occasion to consider—whether a criminal defendant who by

pretending to be mentally incompetent in an effort to delay2 No. 13

‐ 3610

or derail his prosecution is guilty of an obstruction of justice

within the meaning of section 3C1.1 of the federal sentencing

guidelines. That section provides that “if (1) the defendant

willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice with respect to the in

‐ vestigation, prosecution, or sentencing of the instant offense

of conviction, and (2) the obstructive conduct related to (A)

the defendant ʹ s offense of conviction and any relevant con

‐

duct; or (B) a closely related offense, increase the offense lev

‐

el by 2 levels.” The district court ruled that the defendant’s

conduct met the condition for the 2

‐ level enhancement for

obstruction of justice. This raised his guidelines range on one

of the two counts of conviction from 100 to 120 months at the

low end and 125 to 150 months at the high end, and the

judge sentenced him on that count to the approximate mid

‐ point of the higher range—135 months.

When Wilbourn was arraigned on the bank robbery and

firearm brandishing charges, his lawyer asked the magis

‐

trate judge to conduct a hearing to determine whether his

client was mentally competent to be tried. Wilbourn suffers

from “antisocial personality disorder.” Persons afflicted with

that condition “tend to antagonize, manipulate or treat oth

‐

ers either harshly or with callous indifference. They may of

‐

ten violate the law, landing in frequent trouble, yet they

show no guilt or remorse. They may lie, behave violently or

impulsively, and have problems with drug and alcohol use.”

Mayo Clinic, “Diseases and Conditions: Antisocial Personali

‐

ty Disorder,” www.mayoclinic.org/diseases

‐

conditions/antisocial

‐ personality

‐ disorder/basics/definition/

con

‐ 20027920 (visited Feb. 11, 2015). This description fits the

defendant to a T. But there is no suggestion that this condi

‐

tion prevented him from understanding the charges againstNo. 13

‐ 3610 3

him or properly assisting in his defense. It is rather because

from the time of his arrest he had acted as if he were in a

catatonic state that his lawyer doubted his client’s compe

‐

tence to stand trial and asked the magistrate judge to deter

‐

mine whether he was competent. The request was granted

and as a preliminary to the hearing the defendant was sent

to a medical center for an evaluation. He told the psycholo

‐ gist who examined him at the center that he could not read

and didn’t know what a bank is, what a year is, when his

birthday is, or the name or address of any member of his

family. When asked what year it was he replied “201” and

“1964.” But prison staff told the psychologist that they had

observed the defendant reading and also that he followed

instructions without difficulty. The psychologist concluded

that Wilbourn was exaggerating his mental deficits and was

competent to stand trial.

At the competence hearing that followed the psycholo

‐ gist’s evaluation, the defendant’s ex

‐ wife testified on direct

examination that the defendant was sometimes aggressive

and was difficult to communicate with. But on cross

‐

examination she acknowledged that he could read, drive,

and use a cell phone, and that he knew what banks, money,

courts, police, and prosecutors are.

The judge determined that the defendant had by exag

‐ gerating his mental deficits delayed the criminal proceeding

(by how long is unclear, but it was probably four to five

months) and thus had obstructed justice. That’s the ruling

the defendant challenges. He makes two arguments. The

first is that it was not he, but his lawyer, who requested the

competence hearing. Given the defendant’s antisocial per

‐ sonality disorder (and other psychiatric conditions that he4 No. 13

‐ 3610

may have, possibly including paranoia and schizophrenia)

the request was justifiable, although the lawyer seems to

have based it simply on the defendant’s refusal to talk about

the case with him. That silence may well have been part of

the defendant’s plan of obstruction—for when the judge

found him to be competent and he thus knew that he was

going to be tried, he became communicative with his lawyer.

Anyway had the defendant not lied to the psychologist she

could within minutes have determined that he was indeed

competent to stand trial.

The defendant’s second argument, which has greater

merit, is that if exaggerating one’s mental deficits at a com

‐

petence hearing is deemed obstruction of justice (provided it

causes, or is found to have been an attempt to cause, delay

or other disruption of the criminal proceeding), defendants

and their lawyers will be reluctant to request such a hearing

even if they have solid grounds for the request. They will be

afraid that the judge, if he decides that the defendant is

competent to stand trial after all, will decide that he request

‐

ed the hearing only to delay or derail the criminal proceed

‐ ing. But that is just to say that when in doubt about the bona

fides of the defendant’s behavior at the competence hearing

the judge should not find an obstruction of justice. In this

case there was no basis for serious doubt that the defendant

was deliberately exaggerating his symptoms and by doing

so trying to disrupt or at least delay the criminal proceeding,

and that he succeeded in delaying his trial by months

(though success is not a requirement for imposing an en

‐

hancement for obstruction of justice—an attempt will do as

well).No. 13

‐ 3610 5

Any doubts about the defendant’s mental competence

are further undermined by the transcript of the sentencing

hearing. The defendant made an unusually long statement

and it is entirely lucid—in fact anyone reading it would

think him not only normal but also rather well educated.

Granted, the sentencing hearing took place 12 years after his

lawyer moved for a competence hearing. He had first been

sentenced as a career offender in 2002, and the transcript of

that sentencing hearing is not in the record. His sentence

was later vacated and he was resentenced (not as a career

offender) with the two

‐ level increase for obstruction of jus

‐

tice that he challenges in this appeal. It is the resentence that

is at issue in this appeal. But we don’t understand the de

‐

fendant to be arguing that his mental competence has in

‐

creased over that 12

‐ year interval.

This is, as we said at the outset, the first case in which

our court has confronted the issue of obstructing justice by

exaggerating symptoms at a competence hearing. But the

only three other federal courts of appeals that have con

‐

fronted it and issued published opinions have resolved it in

the same way as we do in this opinion. See United States v.

Aldawsari

, 740 F.3d 1015, 1021 (5th Cir. 2014); 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).

A FFIRMED

.