* After examining the briefs and the appellate record , this three-judge panel

has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 17 2002 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH RAMIREZ, Defendant - Appellant. No. 01-1554

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. No. 01-CR-189-M)

Before KELLY , McKAY , and MURPHY , Circuit Judges. *

John W. Suthers, United States Attorney and Kathlee n L. Torres, Assistant United States Attorney, Denver, Colorado, for Plaintiff - Appellee. Michael G. Katz, Federal Public Defender and Matthe w Golla, Assistant Federal Public Defender, Denver, Colorado, for Defendant - Appellant.

KELLY , Circuit Judge.1 18 U.S.C. § 4241(a) provides:

Motion to determine competency of defendant. --At any time after the commencement of a prosecution for an offense an d prior to the sentencing of the defendant, the defendant or the attorney for the Government may file a motion for a hearing to deter mine the mental competency of the defendant. The court shall grantthe motion, or shall order such a hearing on its own motion, if th ere is reasonable cause to believe that the defendant may presently b e suffering from a mental disease or defect rendering him mentally inc ompetent to the extent that he is unable to understand the nature a nd consequences of the proceedings against him or to assist properly i n his defense. - 2 - Defendant-Appellant Joseph Ramirez pled guilty to armed bank robbery, in violation of 18 U.S.C. § 2113(a) & (d), and using a nd carrying a firearm during and in relation to a crime of violence, in violatio n of 18 U.S.C. § 924(c). He was sentenced to 60 months and 84 months respectively, to be served consecutively, and consecutively to a state court sentence now bei ng served. He was also sentenced to five years supervised release on each offense, to run concurrently, and restitution of $1,120. Prior to sentencing, Mr . Ramirez filed an unopposed motion requesting a competency evaluation based upo n symptoms of paranoid schizophrenia and bipolar disorder observed by the clinical director at the facility where Mr. Ramirez was being held. 18 U.S.C. § 4241 (a); 1 1 R.S. Doc. 27 at 2. Counsel also represented that Mr. Ramirez’s mental condition had deteriorated after his plea. 1 R.S. Doc. 27 at 2. The governme nt agreed to incur the cost of the evaluation. Id. The district court denied the motion, but invited Mr. Ramirez- 3 -

to revisit the issue at sentencing. 1 R.S. Doc. 28 . At sentencing, the court denied Mr. Ramirez’s oral motion for an evaluation pursuant to § 4241. On appeal, Mr. Ramirez claims the district court violated both Mr. Ramirez’s due process rights and the statutes governing competency determination s when it denied his request for a competency evaluation. Aplt. Br. at 4. Ourjurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and we revers e and remand based upon the statutory grounds. Whether to order a competency examination is review ed for an abuse of discretion. United States v. Prince , 938 F.2d 1092, 1095 (10th Cir. 1991). Abuse of discretion occurs when a court has based its dec ision “on an erroneous conclusion of law or relies on clearly erroneous fa ct findings.” Kiowa Indian Tribe of Okla. v. Hoover , 150 F.3d 1163, 1165 (10th Cir. 1998). Absent fin dings of an insufficient factual basis for a § 4241(a) mo tion, or a lack of good faith in making the motion, a competency evaluation is requi red. United States v. Hill , 526 F.2d 1019, 1023 (10th Cir. 1975). The evaluati on becomes the first in a three-step process of determining competency. Unit ed States v. Boigegrain , 155 F.3d 1181, 1184 n.1 (10th Cir. 1998). According to the motion, Mr. Ramirez and the govern ment were “in agreement that a psychiatric evaluation would enabl e the Court to decide whether Mr. Ramirez is competent to proceed at sentencing a nd also address any issues- 4 -

counsel may explore with respect to a downward departure pursuant to either U.S.S.G. § 5K2.13 (diminished capacity) and/or U.S. S.G. § 5H1.3 [policy statement concerning mental and emotional condition s].” 1 R.S. Doc. 27 at 2. The district court denied the motion on the grounds that (1) the Defendant had additional time to be served in the Colorado state system, and (2) diminished capacity was unavailable as a ground for departure. I R.S. Doc. 28 at 1. Unfortunately, neither of these grounds address “wh ether there is reasonable cause to believe that the defendant may presently b e suffering from a mental disease or defect rendering him mentally incompeten t 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 standardof § 4241(a). The government argues that Mr. Ramirez made an insu fficient showing unaccompanied by an offer of proof. But see United States v. Grimes , 173 F.3d 634, 636 (7th Cir. 1999) (“anything that points to the need for evidence is admissible to help the judge decide whether reasona ble cause for an evidentiary hearing exists”). Of course, the government’s argu ment is tempered by its lack of opposition to the motion and its concurrence in som e of the supporting grounds. The government also argues that the district court could deny the motion based upon its observations of the Defendant at the plea and sentencing hearings. The problem is that nothing indicates that the districtcourt exercised its discretion on- 5 -

the basis of either of these arguments. We cannot substitute our discretion for that of the district court. On remand, the parties should again be heard on the need for a competency evaluation and a decision mad e in accordance with the above standards. REVERSED and REMANDED.