1 13-622-cr United States v. Sorrentino UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION

A SUMMARY ORDER @ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 14 th day of May, two thousand fourteen.

PRESENT: ROBE RT D. SACK, REENA RAGGI, DENNY CHIN, Circuit Judges.

---------------------------- ---------------------------- -------------- UNITED STATES OF AMERICA, Appellee , v. No. 13-622-cr JOHN SORRENTINO, Defendant-Appellant.

-------------------------------------- -------------------------------- APPEARING FOR APPELLANT: YVONNE SHIVERS, Levitt & Kaizer, New York, New York.

APPEARING FOR APPELLEE: MONICA J. RICHARDS, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York.2 Appeal from a judgment of the United States District Court for the Western District of New York (William M. Skretny, Chief Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entered on February 12, 2013, is AFFIRMED. Defendant John Sorrentino, wh o stands convicted on a gu ilty plea of one count of money laundering, see 18 U.S.C. § 1956(a)(1)(A)(i), (B)(i), cha llenges the district court’s failure sua sponte to order a hearing to decide his mental competency to plead guilty. In reviewing for abuse of discretion, see United States v. Arenburg, 605 F.3d 164, 169 (2d Cir. 2010), we assume the parties’ familiarity with the facts and the record of prior proceedings, which we referenc e only as necessary to expl ain our decision to affirm. 1

To afford a defendant due process, a district court must order a competency hearing “on its own motion, if there is reasonable caus e to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the

extent that he is unable to understand the na ture and consequences of the proceedings against him or to assist properly in his defens e.” 18 U.S.C. § 4241(a). “There are . . . no fixed or immutable signs whic h invariably indicate the need for further inquiry to determine fitness to proceed . . . .” Drope v. Missouri, 420 U.S. 162, 180 (1975); accord

1 As the government conceded at oral argumen t, we do not review unpreserved challenges to the district court’s failure to order a comp etency hearing for plain error because the court must sua sponte order a hearing if there is reasonable cause to qu estion the defendant’s mental competency. See, e. g., United States v. Arenburg, 605 F.3d at 169 (reviewing failure sua sponte to order § 4241(a) hearing for abuse of discretion).3 United States v. Xiao Qin Zh ou, 428 F.3d 361, 379 (2d Cir. 2005). Rather, the district court properly considers “many factors,” incl uding its “observations of the defendant’s demeanor during the proceeding,” as well as any available psychiatric records. United States v. Quintieri, 306 F.3d 1217, 1233 (2d Cir. 2002). Altho ugh not dispositive, defense

counsel’s failure to indicate that the defendan t “had any difficulty a ssisting in preparation or in comprehending the nature of the pro ceedings provides substa ntial evidence of the defendant’s competence.” Id. (i nternal quotation marks omitted). Here, we identify no error in the district court’s failure sua sponte to order a competency hearing before accep ting Sorrentino’s guilty plea in September 2010. At that time, Sorrentino, his counsel, and the pros ecutor all assured the district court that Sorrentino was mentally competent and capable of entering a knowing and intelligent plea. Further, Sorrentino presented to the district c ourt as “calm, understanding, articulate, [and] dialoguing correctly” with both the court a nd defense counsel. J.A. 51. In such circumstances, the district court acted well within its discretion in not ordering a competency hearing on its own motion. See United States v. Quintieri, 306 F.3d at 1233– 34 (identifying no abuse of discretion in failure sua sponte to order hearing because district

court’s observations and defense counsel’s assurances as to defendant’s competence “overcome any reasonable doubt . . . that may ha ve been raised by his statement that he felt dizzy” from taking wrong medication); cf. Unite d States v. Graves , 98 F.3d 258, 261–62 (7th Cir. 1996) (concluding district court sh ould have ordered sua sponte competency4 hearing where defendant suffered stroke that caused him “serious difficulty speaking and some paralysis, and . . . some impairment of memory and understanding” when conversing with court). In urging otherwise, Sorrent ino notes that when he pl eaded guilty, he had an extensive psychiatric histor y for which he was medicated and under the care of a psychologist, but that the district court’s in quiry into these facts during the colloquy was inadequate to determine whether reasonabl e cause existed to believe him mentally competent. But when identifyi ng his various medications for the district court, Sorrentino

confirmed that he understood the proceeding and was able to converse with his attorney, representations confirmed by his demeanor. Moreover, in stating that he thought Sorrentino was competent, defense counsel ack nowledged his client’s history of mental illness and represented that he had been in co ntact with Sorrentino’s psychologist. Absent any indication that the psychologist had e xpressed concern over Sorrentino’s mental competency, the district court did not abuse its discretion in failing to order a hearing. See United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (up holding decision not to order hearing where psychological reports presen ted “no basis” to question competency). Sorrentino argues that, even if the district court did not err in failing to order a competency hearing before accepting his guilty plea, it was obligated sua sponte to require a retroactive finding of mental competency at the time of plea when it ordered an evaluation of Sorrentino’s competency to pro ceed to sentencing. Sp ecifically, Sorrentino5 notes that Dana Brauman, Psy. D., in finding him incompetent to proceed to sentencing in September 2011, opined that Sorrentino was unable to weigh defense counsel’s

recommendations or make decisi ons concerning his constitutiona l rights, deficits bearing

as much on the decisi on to plead guilty as to proceed to sentencing. 2 We are not persuaded. As a general matter, “nunc pro tunc comp etency evaluations are disfavored.” United States v. Auen, 846 F.2d 872, 878 (2d Ci r. 1988); accord United States v. Arenburg,

605 F.3d at 171. A retroactiv e evaluation was particularly unwarranted here because defense counsel, without ques tioning Sorrentino’s ability to plead guilty, requested a professional assessment of his client’s comp etency to proceed to sentencing only because Sorrentino’s mental condition ap peared to have degenerated in the nine months between his plea and scheduled sentencing. Indeed, Dr. Brauman observed that around the time of the guilty plea, records indicated Sorrentino’s exhibition of l ogical thought and appropriate affect and insight. These circumstances, together with the district court’s own competency assessment at the time of Sorrentino’s guilty pl ea, demonstrate no abuse of

discretion in the failure to order a retroactive hearing. See United States v. Arenburg, 605 F.3d at 171 (“[T]he district court is in the best position to determin e whether it can make a

2 Sorrentino does not challenge the district court’s determination that, after undergoing restorative therapy, he was me ntally competent to be sentenced. He challenges only the failure retroactively to consider his competency to plead guilty.6 retrospective determination of competency during trial and sentencing.” (internal quotation marks and alterations omitted)). Accordingly, Sorrentino’s ch allenge fails on the merits.

We have considered Sorrentino’s remaini ng arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.

FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court