NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

ROSS GORDON LAVERTY, 

Defendant-Appellant.

No. 22-10187 

D.C. No. 

3:18-cr-00061-WHO-1 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

William Horsley Orrick, District Judge, Presiding

Argued and Submitted December 5, 2023 

San Francisco, California

Before: COLLINS, FORREST, and SUNG, Circuit Judges.

Ross Gordon Laverty appeals his conviction and sentence for two counts of 

mailing explosive devices with the intent to kill or injure in violation of 18 U.S.C. 

§§ 1716(a) and (j)(2), two counts of receiving or possessing a destructive device in 

violation of 26 U.S.C. § 5861(d), and two counts of using or carrying an explosive 

device to commit the charged offenses in violation of 18 U.S.C. §§ 844(h)(1) and 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JAN 11 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

(2). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. We decline Laverty’s invitation to adopt a heightened competency 

standard. Laverty argues that the Supreme Court’s decision McCoy v. Louisiana,

138 S. Ct. 1500 (2018), impliedly abrogated the application of the Dusky

competency standard in cases, such as this, where the defendant refuses to plead 

guilty in the face of overwhelming evidence. See Dusky v. United States, 362 U.S. 

402 (1960). We disagree. Given “the Supreme Court’s repeated admonitions that it 

is that Court’s ‘prerogative alone to overrule one of its precedents,’” Kashem v. 

Barr, 941 F.3d 358, 376 (9th Cir. 2019) (citations omitted), we generally do not 

find abrogation by implication. Further, we do not see a basis for implied 

abrogation here. In McCoy, the Court held that counsel could not override the 

defendant’s decision to assert innocence, even though counsel believed that the 

evidence of guilt was overwhelming and conceding guilt would best serve the 

defendant’s interest in avoiding the death penalty. McCoy, 138 S. Ct. at 1508–09.

In so holding, the Court explained that where the trial court has determined that the 

defendant is competent under the Dusky standard, counsel cannot override the 

defendant’s “steadfast[] refus[al] to plead guilty in the face of overwhelming 

evidence.” Id.; see also id. at 1509 (“In this case, the court had determined that 

McCoy was competent to stand trial, i.e., that McCoy had ‘sufficient present 

ability to consult with his lawyer with a reasonable degree of rational 
3 

understanding.’ If, after consultations with [counsel] concerning the management 

of the defense, McCoy disagreed with [counsel]’s proposal to concede McCoy 

committed three murders, it was not open to [counsel] to override McCoy’s 

objection.”) (citations omitted). Thus, we see no basis for Laverty’s argument that 

McCoy demands a higher standard of competency than the Dusky standard.

2. The district court did not err in not ordering a pretrial evidentiary hearing 

on competency. Under 18 U.S.C. § 4241(a),

the defendant or the attorney for the Government may file 

a motion for a hearing to determine the mental competency 

of the defendant. The court shall grant the motion, or shall 

order such a hearing on its own motion, if there is 

reasonable cause 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 nature and consequences of the 

proceedings against him or to assist properly in his 

defense.

The district court complied with these requirements. In response to Laverty’s 

motion, the court ordered a competency evaluation to be performed by the parties’ 

agreed-upon expert, Dr. Chamberlain. After receiving the evaluation, which 

indicated Laverty was competent, the court held a status hearing and asked Laverty 

whether an evidentiary hearing was needed. Laverty’s counsel indicated he did not 

see a need at that time, but asked for “a brief period” to make objections to the 

report if further review revealed issues. Counsel never filed objections, requested a 

hearing, or took any additional steps concerning competency pretrial. 
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Further, the court did not plainly err by deciding not to sua sponte conduct 

the evidentiary hearing. Given Dr. Chamberlain’s competency evaluation, and the 

absence of any dispute regarding that evaluation, the district court reasonably 

found no genuine doubt regarding Laverty’s competency. 18 U.S.C. § 4241(a); 

United States v. Garza, 751 F.3d 1130, 1134 (9th Cir. 2014) (“Failing to sua sponte 

hold a competency hearing is plain error only if the evidence of incompetence was 

such that a reasonable judge would be expected to experience a genuine doubt 

respecting the defendant’s competence.” (quotation marks and citation omitted)).

Ordering an examination does not itself mandate an evidentiary hearing. Garza, 

751 F.3d at 1138.

3. The district court did not err in denying Laverty’s request for a post-trial 

evidentiary hearing to determine his current and past competency to stand trial.

When reviewing a district court’s denial of a motion for a competency hearing, we 

use “a practical standard” that asks “whether a reasonable judge, situated as was 

the trial judge who denied the motion, should have experienced doubt with respect 

to the defendant’s competence.” United States v. Duncan, 643 F.3d 1242, 1247 

(9th Cir. 2011) (citation omitted). “We engage in a comprehensive review of the 

evidence, and we are not limited by either the abuse of discretion or clearly 

erroneous standard.” Id. (quotations omitted). Here, in response to Laverty’s posttrial motion, the district court ordered another expert competency evaluation, and 
5 

then properly considered all the experts’ competency evaluations, the 

representations of Laverty’s attorneys, and the court’s own observations of 

Laverty. Id. Based on that evidence, the district court again reasonably found that 

there was no doubt with respect to Laverty’s competence.1

4. The district court’s factual findings regarding Laverty’s competence were 

not clearly erroneous. United States v. Turner, 897 F.3d 1084, 1105 (9th Cir. 

2018). In defense counsel’s view, it was “irrational” for Laverty to reject the plea 

offer and proceed to trial, but that alone cannot establish a defendant’s

incompetence. See McCoy, 138 S. Ct. at 1508.

5. Laverty’s ineffective assistance of counsel claims are premature. “[A]s a 

general rule, we do not review challenges to the effectiveness of defense counsel 

on direct appeal.” United States v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005), 

overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 

(9th Cir. 2007) (en banc). There are two “extraordinary exceptions” to that general 

rule: “(1) where the record on appeal is sufficiently developed to permit 

determination of the issue, or (2) where the legal representation is so inadequate 

1 The government argues that the district court lacked authority to hold an 

evidentiary hearing under Section 4241 to address Laverty’s past competency 

because Section 4241 concerns only present competency. We do not reach the 

merits of this argument because, even assuming that the district court had authority 

under § 4241 to hold a retrospective competency hearing, the district court 

correctly concluded that no such hearing was warranted here.
6 

that it obviously denies a defendant his Sixth Amendment right to counsel.” Id. at 

1156. Neither of those exceptions apply here. To determine whether Laverty’s 

attorney, Babcock, was constitutionally ineffective when he declined to pursue an

evidentiary hearing regarding Laverty’s competence, or when he declined to 

conduct further investigation of an insanity defense, a court would need additional 

evidence regarding Babcock’s reasons for making those decisions. See, e.g., 

Washington v. Shinn, 46 F.4th 915, 921–22, 928 (9th Cir. 2022). Thus, we dismiss 

Laverty’s ineffective assistance of counsel claim “without prejudice to its being 

raised in a proceeding under 28 U.S.C. § 2255.” United States v. McGowan, 668 

F.3d 601, 603 (9th Cir. 2012).

6. The district court did not abuse its discretion in denying Laverty’s Rule 45 

motion. Laverty filed this motion eight months after the verdict. Therefore, Laverty

must demonstrate that his failure to file the motion within the 14-day limit was the 

result of excusable neglect. Fed. R. Crim. P. 33(b)(2) & 45(b)(1)(B). To assess 

whether the neglect was excusable, a court considers at least four factors: “(1) the 

danger of prejudice to the opposing party; (2) the length of the delay and its 

potential impact on the proceedings; (3) the reason for the delay; and (4) whether 

the movant acted in good faith.” Bateman v. United States Postal Serv., 231 F.3d 

1220, 1224 (9th Cir. 2000) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs.

Ltd. P’ship, 507 U.S. 380, 396 (1993)). The district court’s analysis shows that it
7 

properly considered the Pioneer factors and considered the complete record, 

including its prior orders, in determining that Laverty’s failure to timely file was 

not the result of excusable neglect.

7. The district court did not abuse its discretion in denying Laverty’s final 

motion to continue sentencing. A defendant “establish[es] a Sixth Amendment 

violation based on the denial of a motion to continue” by “show[ing] that the trial 

court abused its discretion through an ‘unreasoning and arbitrary’ insistence upon 

expeditiousness in the face of a justifiable request for delay.” Turner, 897 F.3d at 

1102 (quoting Houston v. Schomig, 553 F.3d 1076, 1079 (9th Cir. 2008)). “Where 

a denial of a continuance implicates a defendant’s Sixth Amendment right to 

counsel,” we consider the five Turner factors: “(1) whether the continuance would 

inconvenience witnesses, the court, counsel, or the parties; (2) whether other 

continuances have been granted; (3) whether legitimate reasons exist for the delay; 

(4) whether the delay is the defendant’s fault; and (5) whether a denial would 

prejudice the defendant.” Id. (citation omitted). Here, the district court 

appropriately considered the effect of an additional continuance on the victims of 

the crime, the fact that sentencing had already been continued several times, and 

the court’s reasonable determination that Laverty’s additional counsel was capable 

of effectively representing Laverty at sentencing. The majority of the Turner

factors support the district court’s decision. 
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AFFIRMED.