# Unit ed Sta tes Cou rt of Appeals For the Seventh Circui t Chic ago, I lli nois 60604
Submi tte d October 1, 2013 Deci ded October 1, 2013
Before
FRANK H. EASTERBROO K, Circ uit Judge
ANN CLAIRE WI LLIAMS , Circ uit Judge JOHN DANIEL TIND ER, Circ uit Judge
No. 12-3309
UNITED STATES OF AMERI CA, Plaintiff-Appellee,

v.
KILEB E. DENDERT H, Defen dant-Appellant

. Appeal from the United Stat es Di stric t Court for t he Sout hern Di stric t of Indiana, Terre Haute Di vis i on.
No. 2:10CR00002-001
Wi lli am T. Law rence, Judge

. O R D E R
Kileb Denderth, a federal in mate, att acked two prison empl oye es during a medi cal exam. He was charged wi th two counts of assau ltin g a federal o ffi cer, 18 U.S .C. § 111(a), (b). The di stric t court i ni tiall y found that Dendert h lacked competence to stand tr i al, but after he had received several months of tr eatment, t he court accepted a psychologis t’s unch allenged asses sment that he could un derstand the pr oceedi ngs and assi st i n hi s defens e. A j ury found hi m gui lty o n both counts, and h e was s entenced to a tot al of 120 months’ i mpri sonment, to r un c onsecuti vely wi th the sentence he already
was s erv i ng. Denderth fi led a notic e of appeal, but hi s new ly appointed law yer NON PRECEDENTIAL DISPOSITION To be ci ted only i n acc or dance w i th Fed. R. App. P. 32.1No. 12-3309 P a ge 2

contends that all possi

ble appellate clai ms are fri vo lous and s eeks permis si on to wi thdraw under Anders v. Calif ornia , 386 U.S. 738, 744 (1967). Denderth has not accepted our invi tation to r espond to counsel’s m otion. See C I R

. R. 51(b) . We confine our r eview to t he potent i al i ssu es i denti fi ed i n couns el’s fac i ally adequate brief. See Un ited States v. Schu h , 289 F.3d 968, 973–74 (7th Cir. 2002).
We start wi th the possi ble clai m that the j ury lacked suffi ci ent ev i dence to convic t. Denderth nev er mov ed for a j udgment of acqui ttal, see F E D

. R. C RI M

. P. 29, so we would u phold hi s convi cti ons unles s he c ould establi sh that a mi scarri age o f justi ce would result. E.g. , United S tat es v. Eller, 670 F.3d 762, 765 (7th Cir. 2012). D enderth could not satis fy that o nerous standard. Fo r bot h counts of c onvicti on, the g ov ernment needed only to prov e that Dendert h forcibly assau lted and i nfli cted bodi ly in jury on a Bureau of Pri sons emp loyee who was perfor ming offi ci al duti es. See 18 U.S.C. § 111(a), (b) ; United S tat es v. Walker , 447 F.3d 999, 2001 n.2 (7th Ci r. 2006); United S tat es v. Vallery, 437 F.3d 626, 630 (7th Cir. 2006); United S tat es v. Jackso n , 310 F.3d 554, 556 (7th Cir. 2002). Both v i cti ms enc ounter ed Denderth whi le on duty in the pri son infi rmary , where one work ed for t he Bureau of Pri sons as a physi ci an’s ass i stant and the ot her, as a doctor

. Both r ecalled s i mi lar ev ents: Denderth slapped and kic ked the physic i an’s ass i stant duri ng an exam and then punched the doctor i n the jaw when he c ame to his colleague’s ai d. Denderth testifi ed and admi tte d striking the v i cti ms, an d hi s blows
caus ed both to exper i ence pain from contusi ons. The doctor also suffered a broke n too th. See Un ited States v. Rivera-Alonzo, 584 F.3d 829, 832, 835 (9th Cir. 2009); United States v. Zaba wa , 719 F.3d 555, 558–59 (6th Cir. 2013); United S tat es v. Drapeau , 644 F.3d 646, 650, 652 (8th Ci r. 2011). We agr ee wi th counsel that a chall enge to the suffi ci ency of thi s evi dence w ould be fri vo lous.
Counsel als o consi ders rais i ng an appellate clai m that the dis tr i ct court i ncorre ctly found Denderth competent to stand trial. The court conducted a second competence heari ng after receiving the r epor t fro m the psychologis t, and when as ked on the r ecord if

he di sagreed wi th the docto r’s fi nding that he pr esently was c ompetent, Denderth sai d that he did not. He also decli ned to o ffer evidenc e contradicting the psychologis t’s conclus i ons. See 18 U.S.C. § 4241(d), (e). A di stric t court ’s finding of competence to stand tr i al i s reviewed f or clear err or , United S tat es v. Ewing, 494 F.3d 607, 622 (7th Ci r. 2007), and given the unc ontested ev i dence that tr eatment had resto red Denderth’s competence, i t would be fri vo lous to challenge the deter minati on on appeal,
see 18 U.S.C. § 4241(d); United S tat es v. O’Ne al , 969 F.2d 512, 514 (7th Cir. 1992) (explai ning that compet ence finding could not be clearly er ro neous since defen dant had declined oppor tuni ty t o pre sent evidenc e contradicting psychologis t’s repo rt ); UnitedNo. 12-3309 P a ge 3

States v. Savage, 505 F.3d 754, 759–60 (7th Cir. 2007) ( giving si gni fi cant wei ght t o defense
couns el’s repre sentations about competency and fai lure to challen ge competency finding).
Mor eov er, we also agr ee wi th counsel’s viewthat it would b e frivolous to ar gue that t he di stric t court should h ave r evis i ted its c ompetence finding, sua s ponte, when Denderth announced in the mi ddle of trial that he wi shed to fi re his lawyer and pro ceed pro se (he wi thdrew thatrequest after a di scu ssi on wi th the court and hi s law yer ). A di stric t court does have the dis cretion to o rder a competence heari ng on its ownmotion i f there is reasonable caus e to beli eve t hat the defendant presently suffers from a mental di sease or defect maki ng hi m incompetent. 18 U.S .C. § 4241(a); United S tates v. Alden , 527 F.3d 653, 659 (7th Cir. 2008). Bu t whether t o do so is l eft to the j udge’s di screti on, Alden , 527 F.3d at 659; United S tat es v. Clem ents , 522 F.3d 790, 795 (7th Cir. 2008), and Denderth’s short-lived demand to r epresent him self di d not suggest t hat he could not understand the proceedings or assi st wi th hi s defens e, see Cle ments , 522 F.3d at 795; Ewing, 494 F.3d at 623.
Counsel als o ev aluates wh ether Denderth mi ght ar gue that t he di stric t court abus ed i ts di screti on by notappoi nti ng subs titute couns el for Dendert h or allo wing hi m to r epresent him self. Yet the j udge allowed Denderth to consu lt privately wi th hi s atto rney and also per sonally explain ed the danger s of self-representat i on. Denderth acknowledged hi s un derstandi ng of the r i sks and, as we have noted, changed hi s mind and sai d he wi shed to continue wi th hi s law yer . See Un ited States v. Oakey, 853 F.2d 551, 553 (7th Ci r. 1988); United S tat es v. Jones , 938 F.2d 737, 742 (7th Cir. 1991) ( explaini ng that demand to pro ceed pro se must be u nequi vo cal).
Counsel next tur ns to Denderth’s sentence. The di stric t court calc ulated an i mpri sonment range o f 120 to 150 months based on a tot al offense level of 26 and Categ or y VI criminal hi stor y. Denderth’s offense level in clud ed a 6-level upward adjustment becaus e, the dis tr i ct court found, he had ass aulted the physi ci an’s ass i stant on account of her status as a gove rnment employee

. See U.S.S .G. § 3A1.2(a), (b). The court r easoned that Denderth had reacted to the questi ons posed by the physi ci an’s assi stant, who was evaluating hi m as part of the intake pro cedures at the pris on. Counsel ques tions whether Denderth could challen ge thi s increase bu t concludes that an appellate clai m would b e frivolous. See United S tat es v. Williams , 520 F.3d 414, 424 (5th Ci r. 2008) (upholding appli cati on of 6-level inc rease where defendant, a pris on i nmate, had ass aulted a guard whose pat-down search w as, in hi s vi ew, condu cted i nappropr i ately). M or eov er, ev en i f the di stric t court err ed i n concl uding that Dendert hNo. 12-3309 P a ge 4

was m otivated by t he vic tim ’s offi ci al status, that mi stake was harmless becau se the 6-level i ncrease und er § 3A1.2(c) also would ap ply to hi s condu ct. That i ncrease appli es when a defendant assau lts a law enf or cement offi cer or a pris on offi ci al i n a mann er creating a substanti al ris k of serious b odil y in jury . Denderth knew the physi ci an’s assi stant was au thor i zed to act o n behalf of the prison, and h i s repeated punches and kic ks that caused her to fall to the gr ound and requi re medic al tre atment for brui sing and contusi ons created a subs tantial ri sk of serious bodi ly in jury

. See Un ited States v. Alexander, 712 F.3d 977, 978–79 (7th Cir. 2013) ( upholding 6-level in crease when defendant pun ched poli ce offi cer one t i me in the head); United S tat es v. Hampton , 628 F.3d 654, 657, 659–60 (4th Cir. 2010) ( upholding 6-level in crease when d efendant’s acti ons in resi sti ng arr est caus ed i njury to po li ce offi cer’s ro tato r cuff an d shoulder li gament).
Counsel las t pro poses a poss i ble argument thatDenderth’s pris on sentence i s unreasonable. Th e di stric t court i mposed a term of 120 months after consi dering the sentencing factors in18 U.S.C. § 3553(a), i nclu di ng the natur e and ci rcums tances of the
assau lts and Den dert h’s personal hi stor y and characteris tic s, see id. § 3553(a)( 1), (a)( 2)(A), ( B). We would p resume thi s sen tence to be r easonable, see Rita v. Uni ted States , 551 U.S. 338, 347 (2007); United S tat es v. Aslan , 644 F.3d 526, 531–32 (7th Cir. 2011), and we agree with c ounsel that the r ecord pr esents no bas i s to set asi de that pr esum ption.
The moti on to wi thdraw i s GRANTED , and the appeal i s DISMISSED

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