## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 11-1675

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Gary W. Rickert, Sr., *
* Appellant. *

___________ Submitted: December 15, 2011 Filed: July 19, 2012

___________ Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

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COLLOTON, Circuit Judge. Gary Rickert, Sr. pleaded guilty to one count of bank fraud, in violation of 18 U.S.C. § 1344. On October 7, 2010, Rickert filed a motion for a competency hearing and evaluation pursuant to 18 U.S.C. § 4241. The district court 1 denied the motion, and sentenced Rickert to 72 months’ imprisonment. Rickert appeals the denial of his motion for a competency determinati on and his sentence. We affirm.

1 The Honorable Carol E. Jackson, United States District Judge for the Eastern District of Missouri.I.

Between November 1, 2006, and June 12, 2007, Rickert and his son, Brian E. Rickert, fraudulently obtained approximately $4.9 million in loans from at least five financial institutions to purchase and improve high-end reside ntial properties in Missouri. The Rickerts’ loan applications included false and mate rial statements and were accompanied by fraudulent income tax re turns. On June 11, 2009, a grand jury charged Rickert and his son with eight counts of bank fraud an d money laundering. Rickert pleaded guilty to one count of bank fraud, in violation of 18 U.S.C. § 1344, and the government dismissed the other char ges against him. Rickert’s sentencing hearing was set for August 12, 2010.

Prior to the August sentencing, Rickert f iled objections to the presentence report prepared by the United States Probation O ffice. Attached to the objections were letters, purportedly written by health care prof essionals, discussing Rickert’s addiction to pain relievers and his ment al health issues. The letters also requested that Rickert be allowed to participate indrug and alcohol rehabilitati on programs while in prison. At the August sentencing, however, the pr obation office informed Rickert’s attorney that the letters—which Rickert had given to his attorney—were fo rgeries. Rickert’s attorney promptly moved to withdraw his objections to the PSR and to be granted leave to withdraw from the cas e. The district court gran ted the motions and appointed an assistant federal public de fender, who had previously re presented Rickert, to serve as counsel. Sentencing was re scheduled for October 12, 2010.

Rickert has a long history of mental illness. He suffers from schizophrenia, bipolar disorder, and major depression, am ong other illnesses. In September 2010, he was admitted to the hospital after reporting auditory hallucinations and exhibiting signs of severe paranoia. After ten days of treatment , he had stabilized and was discharged with a diagnosis of schizoaffec tive disorder and a treatment plan. He was admitted to the hospital ag ain on October 10, 2010—two days prior to the October
-2-sentencing—following an emergency call to hi s residence after hehad fallen down the stairs. He was diagnosed with severe schizophrenia at that time.

Rickert’s new attorney moved for a competency hearing and examination, citing the defendant’s mental illness and his purported inability to assist counsel. At the October sentencing hearing, counsel stated that when she attempted to discuss the presentence report with her c lient, he was confused, suffe red from memory lapses, and “ha[d] significant difficulty tracking what [was] going on.” Counsel also argued that Rickert’s electric shock therapy and recen t hospitalization justified a competency determination. At the time, however, the information on Rickert’s mental health in the presentence report was drawn from a report prepared in 2002 after Rickert’s conviction for mail fraud. The probation office had verified Rickert’s recent hospitalization and electric shock treatment, but counsel was unable to present the court with any current medical records. Rickert had declined to authorize the probation office to obtain his medical records.

The court denied Rickert’s motion, c oncluding that there was insufficient evidence to show reasonable cause to belie ve that Rickert was currently suffering from a “mental disease or defect that a ffects his ability to understand the proceedings and to assist in his defense.” The court was unwilling to grant a competency determination based on Rickert’s words and actions, as communicated by his attorney. The court had strong doubts about Rickert’s credibility because of his submission of false letters to the court and his prior felony conviction for fraud. The court also reasoned that Rickert’s mental illness “d[id] not necessarily render him incompetent.” The court was unwilling to rely on dated me dical records to justify a hearing and examination, and the court observed that neith er the court nor Rickert’s attorney could determine if Rickert was malingering. Th e district court also was impressed by Rickert’s remarks at the hearing, calling them “remarkably lucid and intelligent,” given that he had just been released from the hospital.

-3-After the October sentencing, Rickert filed a Motion for Order Correcting Clear Errors under Federal Rule of Criminal Pro cedure 35(a). He first argued that the district court erred by denying his request fo r a mental evaluation. He provided two exhibits—records from the September 2010 hospitalization, and a police report detailing the events leading to his Oct ober 2010 hospitalization—that supplemented the record in support of his motion for comp etency hearing. Rickert also argued that the district court had erred in rejecting as untimely objections made to the presentence report at the October sentencing. A revise d report was filed on October 4, eight days before the October hearing. Rickert clai med that his objections were timely because Federal Rule of Criminal Procedure 32(f) gives parties fourteen days to object to a presentence report.
The district court granted Rickert’s Ru le 35(a) motion in part, concluding that it had committed clear error by preventing him from lodging objections to the presentence report. The court denied, however, Rickert’s renewed request for a competency determination, “[f]or the reasons stated on the record during the sentencing hearing.” A resentencing h earing was scheduled for March 10, 2011.

At the resentencing hearing, Rickert again objected to the denial of the competency examination. He relied on the record from the first sentencing hearing, as augmented by the updated presenten ce report, the records concerning his September hospitalization, and the October police report. In response to this objection, the district court stated that it “did not have any information and . . . still ha[d] not been presented with any informati on that indicates that Mr. Rickert presently suffers from any condition th at would render him unable to understand the nature of the proceedings against him or to assist properly in his defense.”

Rickert also lodged several objections to the presentence report in March. As relevant to this appeal, he challenged th e imposition of a sentencing enhancement for obstruction of justice pursuant to USSG § 3C1.1, and the denial of a reduction for

-4-acceptance of responsibility under USSG § 3E1. 1. The district court overruled these objections, and calculated Rickert’s advisory guidelines range to be 87 to 108 months’ imprisonment, based on Rickert’s criminal history category III and his offense level of 27. The court varied downward from th e guideline range and sentenced Rickert to 72 months’ imprisonment.

On appeal, Rickert argues th at the district court abus ed its discretion in denying him a competency evaluation. He also challenges his sentence, arguing that the district court erred in applying a senten cing enhancement for obstruction of justice, and in denying a sentencing reduction for acceptance of responsibility. Finally, Rickert claims that the court erred by im properly basing his sentence on his need for mental health and medical treatment, in violation of 18 U.S.C. § 3582(a). 2

II.

A.

Rickert first argues that he was entitled to a competency evaluation prior to the imposition of sentence. The conviction of anincompetent person is a violation of due process, Pate v. Robinson , 383 U.S. 375, 378 (1966); United States v. Hinton , 218 F.3d 910, 912 (8th Cir. 2000), and a defendant must be competent at all stages of prosecution, including sentencing. See Hinton , 218 F.3d at 912; United States v.

2 The government moved to dismiss the portion of this appeal concerning competency on the ground that Rickert waiv ed his right to appeal “non-sentencing issues,” which was defined to encompa ss “all non-jurisdictional issues.” The government concedes that the balance of th e appeal may proceed, because Rickert did not waive the right to appeal “sentencing i ssues” if the court did not impose a sentence within the range recommended by the parties. We elect to bypass the possibility of a waiver and address the appeal on the merits. Cf. United States v. Bines , 309 F. App’x 580, 581 n.1 (3d Cir. 2009); United States v. General , 278 F.3d 389, 399 n.4 (4th Cir. 2002).
-5-Rahim , 431 F.3d 753, 759 (11th Cir. 2005). A defendant is competent if he “has sufficient present ability to consult withhis lawyer with a reasonable degree of rational understanding” and “h as a rational as well as factual understanding of the proceedings against him.” Dusky v. United States , 362 U.S. 402, 402 (1960) (per curiam) (internal quotation omitted).

A statute directs the district court to grant a motion for a competency hearing when “there is reasonable cause to belie ve 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 consequen ces of the proceedings against him or to assistproperly in his defense.” 18 U.S.C. § 4241(a). The Constitution also requires an adequate hearing if there is sufficient doubt about the accused’s competence. Robinson , 383 U.S. at 385-86. “[E] vidence of a defendant’s irrational behavior, his demeanor at trial, and any prio r medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required,” and “even oneof these factors standing alone may, in some circumstances, be sufficient.” Drope v. Missouri , 420 U.S. 162, 180 (1975). We review the district court’s decision not to hold a competency hearing for abuse of discretion. See United States v. Turner , 644 F.3d 713, 723 (8th Cir. 2011).

Rickert contends that several aspect s of the record, taken together, show reasonable cause to believe that he wa s incompetent. There are countervailing considerations with respect to each.

Rickert relies on observations made by counsel at the October sentencing. His attorney represented that Rickert seemed confused and was unabl e to follow questions counsel posed to him regarding the presente nce report and the forged letters that he submitted to the court. Trial counsel’s opinion is “unquestionably a factor which should be considered.” Drope , 420 U.S. at 177 n.13. But the court need not “accept without question a lawyer’s representations concerning the competence of his client,”

-6-id ., and the district court he re had sound reasons to discount counsel’s assertions. Counsel’s report stemmed solely from her inte ractions with Rickert. Rickert had just attempted to deceive the court by submitti ng false documents after a conviction for fraud. The court viewed the motion with “a high level of skepticism” because of “doubts that the Court ha[d] about Mr. Rickert’s credibility.” The district court was in a superior position to evaluate Ri ckert’s credibility and the potential for malingering, and we are reluctant to second-guess its assessment.

Rickert also points to his history of me ntal illness, including his experience with electroshock therapy, and his hospitalizations in September and October 2010. A defendant’s mental health is a fact to be considered in determining whether reasonable cause to doubt competency exists, but “[p] resence of a mental illness does not equate with incompetency.” United States v. Whittington , 586 F.3d 613, 618 (8th Cir. 2009) (internal quotation omitted). Indeed, the district court was informed that Rickert was diagnosed in September 2001 with bipolar di sorder with psychotic features, but found competent to stand trial in 2002 after a ment al competency examin ation. The proper focus of the inquiry is not whether Rickert exhibited mental illness, but whether there was reasonable cause to be lieve that he could not understand the nature and consequences of the proceedings or assist pr operly in his defense. The district court thought it significant that as of the October sentencing, the court had “never received a single letter or report from [a] physician who has been involved in Mr. Rickert’s care” that suggested incompetency.

Rickert was hospitalized in Sept ember 2010 after reporting auditory hallucinations and exhibiting si gns of severe paranoia. During his stay, Rickert told a social worker that he was unaware of an upcoming court date in October, and “thought everything was resolved.” He was di scharged after ten days with a diagnosis of schizoaffective disorder and a treatme nt plan. The medical records reflect, however, that Rickert responded to medication and was stable upon his release from the hospital. The discharge report notes that he was “[a]lert and oriented” upon

-7-release, and that he displayed average intell ect at that time. Rickert’s treatment plan was limited to a follow-up appointment.

Rickert was admitted to the hospital again in October 2010 after police were summoned to his residence. The police report shows that on October 10, 2010, an officer with the Creve Coeur Police De partment responded to a distress call at Rickert’s home and found him living in “an unhealthy condition.” Police found feces and urine on the floors and bedding, and there was old, cooked food on the stove. Rickert told officers that he suffered fro m bipolar disorder, schizophrenia, and acute anxiety disorder, but had not been taking his medications for those conditions. Rickert was transferred to a hospital and diagnosed with severe schizophrenia.

The sentencing hearing was convened two days later, however, and the district court observed that Rickert was “remarkabl y lucid and intelligent” in delivering an allocution before the formal imposition of se ntence. Rickert argues that we should not place too much emphasis on the allocution, because “many people with memory or comprehension problems, can nevertheless speak lucidly.” The significance of Rickert’s allocution, however , is not only that it was well spoken, but also that it demonstrated Rickert’s understanding of th e proceedings. He addressed several salient issues, saying that he thought he had presented the court with information about his mental condition by providing reco rds to his former counsel, and that he wished his son and doctor werepresent to explain the “circumstances of” the false letters that he submitted. He also displayed an understanding of the legal system and the charges against him, citing specific pr operties involved in the fraudulent scheme, his efforts to minimize the losses incurred by those he defrauded, and proceedings in another court.

The Supreme Court has allowed that in some circumstances, “a defendant’s demeanor during trial may be such as to obviate the need for extensive reliance on psychiatric prediction concerning his capabilities.” Drope , 420 U.S. at 179 (internal

-8-quotation omitted); see United States v. Crawford , 487 F.3d 1101, 1105 (8th Cir. 2007). Mental alertness and understanding during court proceedings were not enough to dispense with a competency hearing in Robinson , where there was uncontradicted testimony that the accused had exhibited a history of “pronounced irrational behavior.” 383 U.S. at 386. Nor was the court’s a ssessment of the defendant’s demeanor sufficient in Drope , where the accused (1) submitted a report of a psychiatric doctor stating that the defendant “is a very neurotic individual” who suffered from mental illness and “needs the ai d of a psychiatrist,” (2) attempted to choke to death his wife (the alleged vic tim) on the eve of trial despite her previous desire to forego prosecution, (3) attempted suicide during th e trial, and (4) was absent for a crucial portion of his trial. 420 U.S. at 164 n.1, 179-80. Onthe other hand, the Seventh Circuit held that a district court did not err in denying a competency determination based on the court’s observati ons of the defendant at sentencing, even though the defendant had an extensive history of mental illness. See United States v. Clark , 114 F. App’x 239, 245-46 (7th Cir. 2004).

We must consider the reco rd as a whole, including th e statements of Rickert’s counsel, the evidence of Rick ert’s mental illness, the district court’s legitimate concerns about Rickert’s possible malinge ring, and the court’s personal observations of Rickert during the sentencing proceeding. We must also bearin mind the district court’s institutional advantage over the court of appeals in evaluating the demeanor of the defendant and the statements of couns el about the defendant’s mental state. Cf. Gall v. United States , 552 U.S. 38, 52 (2007). Having re viewed the relevant records and transcripts, we think the informati on cited in support of the motion was not so strong as to overcome the district court’s reservations about Rickert’s credibility and the court’s observations that Rickert was lucid and intelligent during the sentencing proceedings. We conclude that the court did not abuse its discretion in finding no reasonable cause to believe thatRickert was incompetent. The district court thus did not commit reversible error in refu sing to order a competency hearing.

-9-B.

Rickert also contends that the distri ct court committed procedural errors at sentencing. We review the district court’s factual findings for clear error, and its interpretation of the sentencing guidelines de novo

. See United States v. Quevedo , 654 F.3d 819, 822 (8th Cir. 2011).

Rickert first argues that the court e rred by imposing a two-level sentencing enhancement for obstruction of justice. He contends that the forged letters that he submitted to the trial court were not material, and that their submission should not trigger an enhancement under USSG § 3C1.1. The senten cing guidelines provide for a two-level upward adjustment when “the defendant willfully obs tructed or impeded, or attempted to obstruct or impede, the admi nistration of justice with respect to . . . sentencing.” USSG § 3C1.1. The commentary includes a nonexhaustive list of situations that call for the enhancement, including when a defendant “provide[s] materially false information to a judge or magistrate judge .” USSG § 3C1.1, comment. (n.4(F)). The guidelines define mate rial evidence as “evi dence . . . that, if believed, would tend to influence or aff ect the issue under determination.” USSG § 3C1.1, comment. (n.6).

We conclude that the district court properly applied the enhancement. The parties do not dispute that Rickert submitte d fraudulent letters to the court with his sentencing memorandum. The letters purporte d to notify the court of a substance abuse problem that Rickert had not disclo sed in his interview with the probation office.

When determining an appropriate senten ce, the district court is required to consider the sentencing factors listed in 18 U.S.C. § 3553(a). Gall , 552 U.S. at 49-50. Whether Rickert has a history of drug abuse is relevant to the defendant’s “history and characteristics,” 18 U.S.C. § 3553(a)(1), and the need for a sentence “to provide the

-10-defendant with needed . . . medical car e [and] other correctional treatment.” Id. § 3553(a)(2)(D). The district court also not ed at resentencing that it often recommends participation in the Bureau of Prison’ s 500-hour Residential Drug Treatment Program when presented with eviden ce of a defendant’s substan ce abuse problem. The Bureau of Prisons may reduce an inmate’s sent ence by up to twelve months for successful completion of this program. 18 U.S.C. § 3621(e)(2)(B).

The content of the forged letters c ould have affected both the length of Rickert’s sentence and the recommended cond itions of his imprisonment. Therefore, the court did not clearly err in determining th at these letters were material to Rickert’s sentencing.

C.

Rickert next argues that the district court erred in denyi ng him a three-level reduction for acceptance of responsibility unde r USSG § 3E1.1. A defendant who obstructs justice ordinarily is not entitled to this reduction, but hemay be eligible in an “extraordinary” case. See USSG § 3E1.1 comment. (n.4); United States v. Smith , 665 F.3d 951, 957 (8th Cir. 2011). The distri ct court’s determination of whether a defendant has accepted responsibility is “e ntitled to great deference” and will be reversed only if it is clearly erroneous. United States v. Wallenfang , 568 F.3d 649, 661 (8th Cir. 2009).

The district court did not clearly err in denying Rickert the reduction. In determining whether a defendant presents an extraordinary case, district courts should consider the totality of the circumstances , including the nature of the defendant’s obstructive conduct and the degree of the defendant’s acceptance of responsibility. United States v. Honken , 184 F.3d 961, 968 (8th Cir. 1999). Other relevant factors include whether the defendant “voluntarily terminated his obstructive conduct” and

-11-whether the defendant “admitted and recanted his obstruc tive conduct, or whether he denied obstruction of justice at sentencing.” Id.

The district court determined that Ri ckert made false representations to the court—submitting forged letters along with his sentencing memorandum—in an attempt to influence the court’s sentencing d ecision. This sort of post-plea obstructive conduct almost certainly disqualifies a defendant from receiving an acceptance-ofresponsibility adjustment. Honken , 184 F.3d at 970; s ee also United States v. Brown , 539 F.3d 835, 841 (8th Cir. 2008). On top of that, Rickert did not voluntarily terminate his obstructive conduct. The lette rs were withdrawn only after the probation office informed Rickert’s counsel , at the August sentencing, th at the letters were false. Rickert also has not shown that his cooperation constituted “more than a guilty plea,” Honken , 184 F.3d at 970, or that his “cooperati on with authorities . . . distinguish[es] his case from a run of the mill case.” Brown , 539 F.3d at 841.

Rickert attempted to obstruct justice and did not demonstrate through acceptance of responsibility that his case was “extraordinary.” The district court thus did not err in denying him a downward adjustment for acceptance of responsibility.

D.

Rickert argues finally that the district court erred by “imposing or lengthening a prison term to promote an offender’s rehabilitation” in violation of 18 U.S.C. § 3582(a). Tapia v. United States , 131 S. Ct. 2382, 2391 (2011). We conclude that the court did not err.

While a sentencing court may not impose or lengthen a prison sentence for the purpose of rehabilitation, the court “may urgethe BOP to place an offender in a prison

-12-treatment program.” Id. at 2392. A court also “co mmits no error by discussing the opportunities for rehabilitation within prison.” Id ; see also United States v. Werlein , 664 F.3d 1143, 1147 (8th Cir. 2011) (per curiam); United States v. Blackmon , 662 F.3d 981, 987 (8th Cir. 2011).

The record does not show that the district court imposed or lengthened Rickert’s sentence to promote his rehabilitation. The court recommended to the Bureau of Prisons that he “continue to receive tr eatment for [his] mental health . . . impairments,” and stated that it thought th at the “Bureau of Prisons is capable of addressing Mr. Rickert’s medical and ment al health needs.” These comments show only that the court urged the Bureau of Pris ons to treat Rickert’s health, and that the court believed the opportunities for rehab ilitation within prison were adequate. See Tapia , 131 S. Ct. at 2392. We therefore conc lude that the district court did not improperly increase Rickert’s sentence for the purpose of promoting rehabilitation.

* * *

For the foregoing reasons, the judgment of the district court is affirmed.

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