* After examining the briefs and the record, we have concluded that oral

argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See

Fed. R. App. P. 34(a)(2). 

# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 8, 2008 *

Decided June 10, 2008

Before

WILLIAM J. BAUER, Circuit Judge

JOEL M. FLAUM, Circuit Judge

TERENCE T. EVANS, Circuit Judge

No. 07

‐ 3273

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

ADRIAN BELL,

Defendant

‐ Appellant

. Appeal from the United States

District Court for the

Western District of Wisconsin.

No. 04

‐ CR

‐ 165

‐ S

‐ 01

John C. Shabaz, Judge

.

O R D E R

This is Adrian Bell’s second visit to our court. When he first came before us, we

affirmed his conviction, entered after a one

‐ day jury trial, on a charge of being a felon in

possession of a firearm but vacated his sentence because the district court denied his NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 07-3273 Page 2

request for a continuance and proceeded to impose a sentence before a probation officer

could obtain his social security disability records, which show that he had rather

significant mental issues that he wanted to raise. United States v. Bell

, No. 05

‐ 2361 (7th

Cir. June 5, 2006).

While his case was on appeal, prison officials first diagnosed Bell with paranoid

schizophrenia and petitioned the district court to transfer him to a psychiatric hospital.

The district court granted this petition, and once Bell was committed to a prison

hospital he began taking anti

‐ psychotic medication to control his illness. The staff

psychiatrist observed that Bell’s condition stabilized following his admission to the

hospital and that he could function adequately so long as he remained on his

medication.

Before resentencing, Bell requested a hearing to establish his competency to

proceed. That motion was granted, and consequently the hospital’s staff examined and

observed Bell for close to two months. In their report to the court, a psychologist and

psychology intern noted that Bell’s most serious psychotic symptoms were managed by

his medication. During this period staff listened in on some of Bell’s phone

conversations and heard him tell his son’s mother about the potential outcomes in his

then

‐ upcoming competency hearing. With the other inmates, Bell was jovial,

spontaneous, and well

‐ liked. But with staff it was a different story

‐‐ he was withdrawn

and emotionless, scoring very poorly on tests designed to measure his cognitive

capacity. On one occasion, however, Bell confronted two staff members, informing

them that, according to his attorney, they had provided Bell with inaccurate information

about his competency hearing. Given his inconsistent behavior, the hospital staff

administered a battery of tests designed to figure out if Bell was malingering and

concluded that he was exaggerating the severity of both his psychiatric illness and

cognitive impairment. Ultimately, the psychologist and intern both concluded that Bell

was competent to proceed to sentencing.

Bell then moved for a an independent psychological examination, a request that

was also granted. After meeting with Bell on three occasions, Bell’s psychologist agreed

that he was malingering, exaggerating both his mental illness and intellectual

deficiency. As a result, the psychologist was unable to reach a conclusion regarding

Bell’s competency to proceed to sentencing. Bell also obtained his social security

records, which revealed that in 2002 he had a full scale IQ of 52

‐‐ a score consistent with

mild mental retardation. But Bell’s high school records show that he had previouslyNo. 07-3273 Page 3

scored nearly twenty points higher, suggesting that Bell doesn’t suffer mental

retardation, but rather has a borderline intellectual deficiency.

While acknowledging that Bell has a serious mental illness and a limited mental

capacity, Magistrate Judge Stephen Crocker nonetheless concluded that Bell was

competent to be resentenced. The district court agreed and sentenced Bell to 285

months imprisonment, the same sentence it imposed at the first sentencing hearing.

The district court considered the new evidence of Bell’s schizophrenia and low IQ but

regarded his “repeated attempts to undermine the process of determining his

competency” to be an aggravating factor.

Bell first argues that the district court erred when it found him competent to be

sentenced. Due process requires a defendant to be competent before proceeding to

sentencing

‐‐ in other words, a defendant must have the ability to consult with his lawyer

and have a rational and factual understanding of the proceedings against him. United

States v. Moore

, 425 F.3d 1061, 1074 (7th Cir. 2005); United States v. Collins

, 949 F.2d 921,

924 (7th Cir. 1991). A district court’s determination that a defendant is competent

deserves deference, and we will overturn such a finding only if the court clearly erred.

Moore

, 425 F.3d at 1074.

Bell’s mental illness and low IQ raise legitimate concerns about his ability to

proceed to sentencing, but the magistrate judge adequately addressed these concerns by

ordering Bell to undergo a psychological evaluation, allowing Bell to get a second

opinion, and carefully considering the evidence before him. A defendant’s diagnosis of

schizophrenia does not necessarily preclude a finding that he is competent. See United

States v. Bennett

, 908 F.2d 189, 195 (7th Cir. 1991). Most of the psychotic manifestations

of Bell’s schizophrenia were controlled by medication, and he remained under direct

medical supervision during his resentencing. Likewise, a low IQ score alone is not

enough to show that a defendant is incompetent. Cf. United States v. Rodriguez

‐ Leon, 402

F.3d 17, 23

‐ 25 (1st Cir. 2005) (finding defendant with IQ of 62 competent to plead

guilty). While Bell’s IQ scores were low, the district court was entitled to discount their

weight given that all three medical professionals

‐‐ including the one he hired

‐‐

concluded that Bell was malingering with regard to his mental impairment. Critically,

in unguarded moments Bell demonstrated that he understood his case. Prison staff

overheard Bell lucidly talking with his family about his impending hearings, and Bell

coherently recounted to hospital staff a conversation he had with his attorney. Two

medical professionals deemed Bell competent to proceed to sentencing, and no doctor

or psychologist disagreed. We cannot conclude that the magistrate judge clearly erredNo. 07-3273 Page 4

when he depended on the unrefuted conclusions of these professionals. Moore

, F.3d at

1067, 1075; United States v. Robinson

, 404 F.3d 850, 857

‐ 58 (4th Cir. 2005). Nor can we

conclude that the district court was wrong to accept the findings made by Judge

Crocker.

Bell also argues that his within

‐ guidelines sentence is unreasonable because the

district court failed to adequately explain why it reimposed the same 285

‐ month

sentence despite the new evidence presented at resentencing of his schizophrenia and

limited cognitive capacity. But the new evidence did not require the district court to

impose a lower sentence on remand because, as the court explained, that evidence was

a mixed bag. While Bell’s low IQ and mental illness mitigated against a harsh sentence,

his persistent malingering in attempts to undermine the court’s competency

determination suggested a heavy sentence was needed to promote Bell’s respect for the

law. 18 U.S.C. § 3553(a)(2)(A). The district court explicitly weighed these competing

factors when reaching Bell’s sentence, and in light of this analysis we cannot conclude

that the 285

‐ month sentence was inadequately explained. Rita v. United States

, 127 S. Ct.

2456, 2468

‐ 69 (2007) (affirming sentence when record reflects that sentencing judge

considered defendants argument and evidence); United States v. Dabney

, 498 F.3d 455,

460 (7th Cir. 2007).

Accordingly, the judgment of the district court is AFFIRMED.