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

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted 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 Kathleen L. Torres, Assistant United

States Attorney, Denver, Colorado, for Plaintiff - Appellee.

Michael G. Katz, Federal Public Defender and Matthew 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 and prior to the

sentencing of the defendant, 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.

- 2 -

Defendant-Appellant Joseph Ramirez pled guilty to armed bank robbery, in

violation of 18 U.S.C. § 2113(a) & (d), and using and carrying a firearm during

and in relation to a crime of violence, in violation 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 being 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 upon 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 government 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 determinations when it denied his request

for a competency evaluation. Aplt. Br. at 4. Our jurisdiction arises under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a) and we reverse and remand based upon

the statutory grounds.

Whether to order a competency examination is reviewed 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 decision “on an erroneous

conclusion of law or relies on clearly erroneous fact findings.” Kiowa Indian

Tribe of Okla. v. Hoover, 150 F.3d 1163, 1165 (10th Cir. 1998). Absent findings

of an insufficient factual basis for a § 4241(a) motion, or a lack of good faith in

making the motion, a competency evaluation is required. United States v. Hill,

526 F.2d 1019, 1023 (10th Cir. 1975). The evaluation becomes the first in a

three-step process of determining competency. United States v. Boigegrain, 155

F.3d 1181, 1184 n.1 (10th Cir. 1998).

According to the motion, Mr. Ramirez and the government were “in

agreement that a psychiatric evaluation would enable the Court to decide whether

Mr. Ramirez is competent to proceed at sentencing and 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 conditions].” 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 “whether 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 standard of § 4241(a).

The government argues that Mr. Ramirez made an insufficient 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 reasonable cause for an evidentiary

hearing exists”). Of course, the government’s argument is tempered by its lack of

opposition to the motion and its concurrence in some 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 district court 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 made in accordance with the

above standards.

REVERSED and REMANDED.