FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 10, 2006

THOMAS K. KAHN

CLERK

The Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,

*

sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-14641

________________________

D. C. Docket No. 00-00677-CR-KAM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JAVIER IZQUIERDO, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(May 10, 2006)

Before TJOFLAT and HULL, Circuit Judges, and RESTANI , Judge. *

PER CURIAM:

Defendant-Appellant Javier Izquierdo (“Izquierdo”) appeals his cocaine
The plea agreement provided that the government would seek dismissal of Counts I and 1

IV of the indictment in exchange for Izquierdo’s guilty plea, which it did.

2

distribution and firearm convictions that were based on his guilty plea. Izquierdo

contends that the district court erred in denying his subsequent motion to withdraw

his guilty plea based on incompetency. After review and oral argument, we affirm

the denial of Izquierdo’s motion and his convictions.

I. Background

A. Plea colloquy

Izquierdo, the sole appellant here, and his brother, Juan Izquierdo (“Juan”),

were indicted for robbery, in violation of 18 U.S.C. § 1951 (Count I); conspiracy to

distribute cocaine, in violation of 21 U.S.C. § 841 (Count II); use of a firearm

during a drug trafficking crime and during a crime of violence, in violation of 18

U.S.C. § 924 (Count III); and, as to Izquierdo only, possession of a firearm as a

convicted felon, in violation of 18 U.S.C. § 922 (Count IV). On September 10,

2001, pursuant to a written plea agreement, Izquierdo pleaded guilty to Counts II

and III of the indictment.1

During Izquierdo’s plea colloquy, his attorney explained to the district court

that Izquierdo was illiterate and that his plea agreement had been previously read

aloud—verbatim—to Izquierdo by both his attorney and his brother Juan. Upon

questioning by the district court, Izquierdo stated, inter alia, that he had never been
3

treated for a mental illness; that he was not presently under the influence of any

drugs, alcohol, or medication; that he was satisfied with his attorney’s

representation; that he had a full opportunity to review the charges against him

with his attorney; that he agreed with the alleged facts as described by the

government; and that he understood “each and every term of the plea agreement,”

including his sentencing possibilities, that he was surrendering certain civil and

trial rights, and that he might incur a fine or suffer adverse immigration

consequences. Additionally, Izquierdo twice acknowledged that he was thinking

clearly. 

Based on the plea colloquy, the district court found Izquierdo “fully

competent and capable of entering an informed plea,” and accepted his guilty plea. 

The district court scheduled sentencing for December 11, 2001. 

B. Juan’s trial and the Haber Report

In the interim, brother Juan’s trial commenced on November 14, 2001. 

During that trial, Juan filed an ex parte motion to have Izquierdo declared

incompetent. Juan’s motion argued that he could not have participated in a

conspiracy with Izquierdo because Izquierdo was of unsound mind. In support of

his ex parte motion, Juan filed a report of a psychological evaluation of Izquierdo

by Merry Haber, Ph. D., a psychologist (the “Haber Report”). Juan’s counsel
Haber administered the Wechsler Adult Intelligence Scale-III, the Wide Range 2

Achievement Test-3, and the Bender Gestalt & Bender Gestalt Recall Test. 

Izquierdo’s mother informed Haber that Izquierdo did not begin walking until age two, 3

did not begin talking until age three, and did not learn to tie his shoes or dress himself until age

nine. 

4

retained Haber to evaluate Izquierdo, which she did on November 21, 2001. The

Haber Report concluded that Izquierdo was incompetent. 

In her Report, Haber summarized her evaluation of Izquierdo. Haber

administered a mental status examination, a clinical interview, a standardized

intelligence test, a test of reading, spelling, and arithmetic achievement, and a

measure of visual-motor coordination, perceptual organization, and memory.2

Haber also consulted Izquierdo’s mother and sister. Prior to Haber’s evaluation,

Izquierdo was told that the results of the examination would be given to his

attorney and to Juan’s attorney. 

Based on Haber’s discussions with Izquierdo, his mother and sister, and

Juan’s attorney, the Haber Report stated that Izquierdo: (1) was born with his

umbilical cord tight around his neck, and as a result, he suffered a lack of oxygen

and was developmentally slow; (2) quit school in the eighth grade after being 3

expelled for fighting several times, and was unable to learn to read or write; (3) ran

away from home as a teenager because he did not want to receive psychological

treatment; (4) never held a driver’s license because he could not pass the test; (5)
5

suffered a concussion at age twenty-two; (6) has a history of frequent drug and

alcohol use; (7) has trouble falling asleep; (8) did not understand everything that

happened when he pleaded guilty, including the meaning of the word “parole”; and

(9) did not ask questions at his plea colloquy because he did not want people to

think he was stupid. Additionally, based on Haber’s tests and observations, the

Haber Report concluded that Izquierdo: (1) was “well oriented in all spheres with

attention and concentration intact”; (2) had “coherent, productive and goaloriented” thought processes; (3) when left alone, attempted to complete a problem

that he had been unable to complete during his test, indicating his involvement in

the process; (4) could add one-digit numbers with some mistakes, but could not

add two-digit numbers; (5) knew the alphabet, but could not spell on a first grade

level; and (6) had a generally inadequate “fund of information.” The Haber Report

concluded that intellectually, Izquierdo had an IQ of fifty-three to sixty-one, a

range corresponding to “moderate to mild mental retardation, and that test results

“suggest[ed] that he [was] not competent to proceed,” although, notably, “[a]

formal competency evaluation was not performed.” The Haber Report

recommended that a formal competency evaluation be conducted. Based on the

Haber Report, the district court declared a mistrial in Juan’s case. 
6

C. The First FMC Report

Subsequently, on December 7, 2001 (four days before his scheduled

sentencing), Izquierdo filed an unopposed motion for an independent

psychological evaluation, supported by the Haber Report. On December 13, 2001,

the district court granted Izquierdo’s motion and recommended that Izquierdo’s

competency be evaluated at the Federal Medical Center in Butner, North Carolina

(“FMC”). At the FMC, Izquierdo was evaluated by a psychiatric team led by

Robert Lucking, M.D., (“Lucking”), a psychiatrist. On March 25, 2002, Lucking

authored a report of his team’s findings based on their evaluation of Izquierdo (the

“First FMC Report”). 

Based on the FMC team’s interviews with Izquierdo, the First FMC Report

stated, among other things, that Izquierdo: (1) suffered a blow to the head in 1995,

as well as other head trauma; (2) could not read or write; (3) had been treated eight

times as a juvenile for drug and alcohol abuse, but had refused to consistently

attend psychiatric treatment in spite of a recommendation that he receive such

treatment; (4) did not sleep well; (5) suffered from mood swings but not

hallucination; (6) had a history of anoxia (decreased oxygen to the brain); (7) never

passed his driver’s test, but drove anyway; and (8) often got lost, even while

attempting to locate his own home. 
According to the First FMC Report, Lucking’s team administered the following 4

procedures during Izquierdo’s first evaluation: (1) clinical interviews; (2) behavioral

observation; (3) physical examination; (4) Magnetic Resonance Imaging (“MRI”) of Izquierdo’s

brain; (5) Bender Visual Motor Gestalt Test; (6) Bender Visual Motor Gestalt Recall Test; (7)

Trail Making Test; (8) Rey Auditory-Verbal Learning Test (“RAVLT”); (9) Booklet Category

Test (“BCT”); and (10) Validity Indicator Profile (“VIP”). 

7

The First FMC Report also noted, based on a multitude of tests conducted 4

by Lucking and his team, that Izquierdo: (1) was oriented to people and places, but

not time; (2) had difficulty finding the correct words for objects; (3) performed

simple memory tasks adequately, but could not recite the months of the year in

correct order; (4) was able to count from one to twenty and twenty to one without

error, but with some difficulty; (5) was below average in recalling ideas expressed

in a story and was unable to think abstractly at any level using similarities,

differences, or proverbs; (6) showed no significant language deficits, but showed a

deficit in visual memory; (7) could not explain how similar items were related; (8)

could draw simple two-dimensional and three-dimensional objects without issue,

but struggled with drawing more difficult three-dimensional objects; (9) had a well

below normal “fund of general information”; (10) lacked math ability and had

difficulty putting letters in sequential order; (11) could not identify which object in

a series was unlike the others; (12) understood the concept of “finders-keepers,”

and was able to explain correctly “why we have fire insurance,” but was confused

by the concept of planning a three-day trip from Miami to Tampa Bay and could
8

not progress beyond the step of borrowing a car to make the drive. According to

the First FMC Report, although Izquierdo’s overall test results indicated no brain

damage, they did indicate cognitive difficulties and memory impairments. 

In the First FMC Report, Lucking noted some irregularities in Izquierdo’s

test results. On one test (the RAVLT), Lucking noted that Izquierdo performed

worse than moderately impaired Alzheimer’s and Parkinson’s disease patients. 

Lucking also noted that Izquierdo may have been exaggerating his level of

impairment on the BCT, because Izquierdo missed more than the usual number of

easy questions on that test—items that are generally missed by less than five

percent of brain-damaged people. Finally, Lucking observed that Izquierdo’s

responses on the VIP test indicated a lack of motivation and interest, and the First

FMC Report concluded that Izquierdo’s performance on the VIP “probably [did]

not reflect his true ability.” 

Nevertheless, in the First FMC Report, Lucking ultimately concluded that

Izquierdo: (1) had shown a basic consistency and no attempt to mislead, and had

performed in a moderately to severely impaired range; (2) responded to some tests

in a random manner and may not have demonstrated his true abilities on some

tests; (3) suffered from “mild” mental retardation; (4) was not attempting to

malinger and made a valid attempt to participate in the testing; and (5) made an
9

effort to disguise himself as functioning at a higher level to avoid humiliation. 

Finally, the First FMC Report determined that Izquierdo was not competent and

was unlikely to become competent, and that Izquierdo did not understand the

meaning of “guilty,” “not guilty,” or the nature and consequences of the criminal

proceedings against him. 

The First FMC Report also recommended that Izquierdo be returned to

Butner for a period of 120 days, pursuant to 18 U.S.C. § 4241(d), to determine if

his competency could be restored. Lucking later explained that if Izquierdo’s

“deficits” were due to an organic brain injury, it would be unlikely that Izquierdo

could be restored to competency, but Lucking further indicated that “we wouldn’t

[have] be[en] able to tell for certain unless we had him back and we attempted to

educate him regarding the trial process.” Additionally, Lucking found no evidence

of hallucinations or delusions. The First FMC Report cautioned that because

Izquierdo’s primary language was Spanish, his ability to read and write in English

was not to be given excess weight in assessing his intelligence. 

D. Motion to withdraw and the first competency hearing

On May 6, 2002, Izquierdo filed a motion to withdraw his guilty plea and to

be declared incompetent. Izquierdo’s motion was based on the Haber Report and

the First FMC Report. In response, the government advised the district court that
10

Oscar Diaz (“Diaz”), an inmate at the federal detention center where Izquierdo had

been held, had told agents that Izquierdo had told Diaz, prior to Izquierdo’s FMC

evaluation, that he planned “to act crazy” in order to be found incompetent. The

government also argued that Izquierdo acted rationally during his plea hearing and

that Izquierdo himself demanded a plea concession from the government,

demonstrating his lucidity and focus. The district court referred the issue to a

magistrate judge, who ordered an evidentiary hearing. 

The hearing took place on June 21, 2002. After Lucking was sent out of the

courtroom, Diaz testified for the government. Specifically, Diaz testified that

Izquierdo told him in December 2001 that Izquierdo was pretending to be “ill” and

acting like he was “crazy” so that the doctors would find him mentally ill. 

According to Diaz, Izquierdo told him that in order to appear mentally ill,

Izquierdo “told the doctor that he couldn’t sleep, that he had a lot of headaches,

that he had . . . visions at night . . . [and] that he felt like he was sick.” When Diaz

asked Izquierdo if all of that was true, Izquierdo explained that there was nothing

actually wrong with him. Diaz also testified that he had seen Izquierdo reading

books in his cell, writing postcards and poetry, and drawing tattoos. Diaz

acknowledged that he once had to read a letter to Izquierdo because it was written

in Spanish. Diaz further testified that he did not know that Izquierdo was born in
11

Spain and raised in the Dominican Republic. 

Izquierdo’s mother and Lucking also testified at the hearing, in a manner

substantially consistent with their statements as recorded in the First FMC Report

and the Haber Report. Izquierdo’s mother stated that Izquierdo was born with the

umbilical cord twisted around his neck and that he developed slowly. Lucking

essentially reiterated his opinions contained in the First FMC Report, including

that Izquierdo was incompetent. 

However, Lucking acknowledged that it was possible that Izquierdo was

being deceitful on two of the tests; that Izquierdo showed some inconsistencies

during testing; that the MRI of Izquierdo’s brain was normal; and that no test

confirmed his family’s claim that Izquierdo had suffered brain damage. Moreover,

Lucking testified that at the time he first tested Izquierdo and wrote the First FMC

Report, he was unaware of Diaz’s claim that Izquierdo intended to malinger. 

Lucking further testified that if he had known about Diaz’s claims at the time of

the First FMC Report, he would have “look[ed] closer at the data, and . . . may

have sought some additional confirmatory evidence that [he] did not seek.” 

Lucking ultimately agreed that further evaluation of Izquierdo was necessary,

testifying that he “would like to see . . . Izquierdo for some more time to reassess

this.” 
12

Ultimately, the magistrate judge found it significant that Lucking

acknowledged that he might have evaluated Izquierdo differently if he had known

about Diaz’s testimony at the time of the First FMC Report. As such, the

magistrate judge ordered that Izquierdo be returned to the FMC for further

evaluation. 

E. The Second FMC Report

The government filed a second report after Lucking’s team re-evaluated

Izquierdo at the FMC (the “Second FMC Report”). In the Second FMC Report,

dated February 13, 2003, Lucking concluded that Izquierdo: (1) was competent,

understood the charges against him, and could assist in his own defense; (2) had

attempted to mislead Lucking in the earlier evaluation; (3) did not suffer from

brain damage; (4) was malingering; and (5) was functionally illiterate. In his

second evaluation of Izquierdo, Lucking conducted: (1) clinical interviews; (2) a

behavioral observation; (3) a physical examination; (4) the VIP test; and (5) the

Minnesota Multiphasic Personality Inventory (second edition). All of these

procedures were performed in Lucking’s first evaluation, except for the Minnesota

Multiphasic Personality Inventory. See supra note 4. 

Lucking’s new opinion was based on several factors, including: (1) Diaz’s

testimony; (2) letters given to Lucking by Izquierdo indicating that Izquierdo could
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). 5

13

read and write, including one from Izquierdo’s brother that said, “I want to hear

from you too, and don’t tell me no sh-t that you cant wright [sic], cause I’ve seen

you do it”; (3) a statement from a government agent that surveillance indicated that

Izquierdo did not appear to get lost while returning to his house, could use the

Internet, had a Florida driver’s license, could negotiate gun and drug sales, and

bragged about eight prior robberies; (4) the government agent’s belief that

Izquierdo could have carried out a criminal plan; (5) Izquierdo’s refusal to sign his

Miranda waiver until it was read to him; (6) inconsistent and exaggerated test 5

scores that indicated to Lucking that Izquierdo was performing poorly on purpose,

including the Minnesota Multiphasic Personality Inventory test, on which Lucking

concluded that Izquierdo was “endorsing multiple psychological symptoms” in

order to “appear more ill than he is”; (7) Izquierdo’s participation in a cigarette

trafficking scheme while at Butner; (8) Izquierdo’s involvement in a gang at

Butner; (9) Izquierdo’s coherent provision of information to government agents

regarding inmate activity while in prison; (10) Izquierdo’s statement that he knew

his actions to be wrong; and (11) information that Izquierdo had approached other

inmates with a plan to frame another inmate for possession of a homemade knife. 
14

F. Second competency hearing

The magistrate judge held a second competency hearing on June 10, 2003, at

which Lucking testified that Izquierdo was, in fact, competent. Among other

things, Lucking testified that Izquierdo’s test results were consistent with the test

results from Lucking’s prior evaluation, but, because there was no medical

evidence of a brain injury, those test results now suggested to Lucking that

Izquierdo was attempting to portray himself as mentally ill when he was not in fact

mentally ill. On cross-examination, Lucking also admitted that Izquierdo’s ability

to relay information to government agents was not relevant to Izquierdo’s

competency and that Lucking’s expertise with tests designed to discover

malingering was limited. 

After Lucking’s June 10, 2003 testimony, Izquierdo’s counsel obtained

permission to have Haber reevaluate Izquierdo. After reexamining Izquierdo on

September 24, 2003, Haber concluded that Izquierdo was not malingering. Haber

testified to that effect before the magistrate judge on March 2, 2004, and reiterated

her opinion that Izquierdo was not competent to stand trial or enter a guilty plea

and never would be. 

G. Report and recommendation

Ultimately, on March 10, 2004, the magistrate judge issued a report (the
15

“R&R”) that recommended that Izquierdo’s motion to withdraw his guilty plea be

denied. The magistrate judge found that Izquierdo had failed to meet his burden of

establishing that he was incompetent. The R&R recounted at length Lucking’s

findings and opinions. The magistrate judge then expressly rejected Haber’s

opinion because, inter alia: (1) the historical evidence on which Haber had relied

was supplied exclusively by Izquierdo and his family, and Haber did not have

Izquierdo’s medical records in order to verify Izquierdo’s medical background; (2)

Haber testified that she would have been “surprised” by information in the First

FMC Report, despite the fact that she also testified that she had supposedly

reviewed the First FMC Report; and (3) information from the department of motor

vehicles contradicted Izquierdo’s claims that he had never possessed a driver’s

license and could not read or sign his name, and Haber had found those claims

significant in her evaluation. Finally, the magistrate judge noted that Izquierdo and

his counsel made no competency objection at the time of his plea hearing and that

the district court originally found Izquierdo competent to enter a guilty plea. The

district court summarily adopted the R&R and determined that Izquierdo was

competent to proceed to sentencing.

H. Sentencing 

Izquierdo’s sentencing hearing took place on August 27, 2004. The plea
16

agreement stated that the government would recommend an offense level of thirtytwo and no offense level enhancements. In paragraph two of the agreement,

Izquierdo expressly agreed “that consecutive mandatory minimum sentences of ten

years as to each of [C]ounts II and III must be applied to the defendant.” 

Paragraph four of the agreement also contained Izquierdo’s express

acknowledgment that “the court must impose a minimum term of imprisonment of

ten (10) years for [C]ount II, consecutive to a minimum term of imprisonment of

ten (10) years for [C]ount III, and may impose a statutory maximum term of

imprisonment of up to life imprisonment.” After reviewing a pre-sentencing report

and conducting a sentencing hearing, the district court sentenced Izquierdo to two

consecutive terms of 120 months’ imprisonment, for a total sentence of 240

months’ imprisonment. Izquierdo does not appeal his sentence, but he appeals the

denial of his motion to withdraw his guilty plea.

II. Standard of Review

A district court’s denial of a request to withdraw a guilty plea is generally

reviewed for abuse of discretion. See United States v. Freixas, 332 F.3d 1314,

1316 (11th Cir. 2003). The denial of a motion to withdraw a guilty plea is not an

abuse of discretion unless the denial was “‘arbitrary or unreasonable.’” United

States v. Weaver, 275 F.3d 1320, 1327 n.8 (11th Cir. 2001) (citation omitted). A
17

district court abuses its discretion if it “fails to apply the proper legal standard or to

follow proper procedures in making the determination, or makes findings of fact

that are clearly erroneous.” Birmingham Steel Corp. v. TVA, 353 F.3d 1331, 1335

(11th Cir. 2003) (citation, quotation marks, and alterations omitted). 

We review a district court’s decision on “competency to stand trial as a

factfinding subject to reversal only for clear error.” United States v. Hogan, 986

F.2d 1364, 1371 (11th Cir. 1993) (reviewing our Circuit’s precedent on the proper

standard of review for a motion for competency to stand trial). 

III. Discussion

We first examine whether the magistrate judge properly placed the burden of

proof on Izquierdo.

A. Burden of proof

A defendant-movant clearly has the burden on a motion to withdraw a guilty

plea. See United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988). That

burden does not shift to the government when the basis of the withdrawal motion is

incompetency at the time of the plea. See id. (noting that even in a case in which

the defendant attempted to withdraw his guilty plea in part because of his “mental

impairment resulting from a physical illness,” the defendant had “the burden of

showing a ‘fair and just reason’ for withdrawal of his plea”). This is especially
18

true here, where no concerns about Izquierdo’s competency were raised at the time

of the guilty plea and the district court conducted a plea colloquy and made a

finding that Izquierdo was competent to enter his plea. 

Further, the relevant competency statute arguably contemplates that the

burden will lie with the party making a motion to determine competency. 18

U.S.C. § 4241. Specifically, 18 U.S.C. § 4241(a) provides that 

[a]t 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 . . . 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. 

18 U.S.C. § 4241(a). Moreover, the Supreme Court has stated, albeit in dicta, that

the burden of establishing incompetence rests with the defendant. See Cooper v.

Oklahoma, 517 U.S. 348, 362, 116 S. Ct. 1373, 1380 (1996) (“Congress has

directed that the accused in a federal prosecution must prove incompetence by a

preponderance of the evidence.”) (citing 18 U.S.C. § 4241); see also United States

v. Robinson, 404 F.3d 850, 856 (4th Cir.) (“Under federal law, the defendant has

the burden . . . ‘[to show] that the defendant is . . . mentally incompetent.’”) (citing

18 U.S.C. § 4241 and Cooper), cert. denied, __ U.S. __, __ U.S. __, 126 S. Ct. 288,
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we

6

adopted as binding precedent all decisions of the former Fifth Circuit that were rendered prior to

October 1, 1981.

In United States v. Makris, 483 F.2d 1082 (5th Cir. 1973) (“Makris I”), the defendant 7

(Makris) was charged with perjury based on his testimony before SEC. Before testifying before

the SEC, Makris had brain surgery. Thus, “[p]rior to trial, the court on the government’s motion

appointed a highly qualified psychiatrist . . . to examine Makris and report to the court on his

competency to understand the proceedings against him and to properly assist in his own

defense.” Makris I, 483 F.2d at 1089. Makris also filed a motion to suppress his testimony

(claiming insanity at the time of the perjury offense), which was denied. Makris proceeded to

trial and was convicted. In Makris I, our predecessor court affirmed the district court’s

conclusion that Makris was sane at the time of his offense. As to competency at the time of the

trial, however, the Makris I court felt constrained to remand, because the district court had failed

to conduct a formal competency hearing as required by the competency statute, and the

psychiatrist’s report “indicated a substantial possibility” that Makris was incompetent at the time

of trial. Id. at 1090-92. 

On remand, the district court conducted a competency hearing and concluded that Makris

was competent to stand trial at the time. Makris appealed again, arguing, among other things,

that the government should have been required to prove his incompetency beyond a reasonable

doubt. Makris II, 535 F.2d at 905-06. Our predecessor court disagreed, concluding that

although “in federal criminal cases the government has the burden of proving [the] defendant

competent to stand trial” at the competency hearing,” the government only had to establish the

19

126 S. Ct. 469 (2005). 

Although Supreme Court precedent points in that direction, our predecessor

court has stated that “[t]here can be no question that in federal criminal cases the

government has the burden of proving [a] defendant competent to stand trial at the

[competency] hearing.” United States v. Makris, 535 F.2d 899, 906 (5th Cir.

1976) (emphasis added) (“Makris II”). However, Makris II is not on point 6

because it involved the government’s pre-trial motion to determine the competency

of the defendant, and did not involve a defendant’s motion to withdraw a guilty

plea based on incompetency. 

7
defendant’s competence by a preponderance of the evidence. Id. at 906.

In 1984, 18 U.S.C. § 4244 was replaced by 18 U.S.C. § 4241. 8

20

More importantly, the competency statute in Makris II, 18 U.S.C. § 4244,

was a different statute with different language than the competency statute at issue

here. Section 4244, while also allowing competency motions to be filed by either 8

the government or the defendant, placed more emphasis on the government’s role

in filing an incompetency motion. See 18 U.S.C. § 4244 (1949) (“Whenever after

arrest and prior to the imposition of sentence or prior to the expiration of any

period of probation the United States Attorney has reasonable cause to believe that

a person charged with an offense against the United States may be presently insane

or otherwise so mentally incompetent as to be unable to understand the

proceedings against him or properly to assist in his own defense, he shall file a

motion for a judicial determination of such mental competency of the accused . . . .

Upon such a motion or upon a similar motion in behalf of the accused . . . .”)

(emphasis added). 

Accordingly, we conclude that Makris II is materially distinguishable, and

Buckles is more on point. Here, the district court found Izquierdo competent to

enter his guilty plea, and this case is before us only on Izquierdo’s own motion to

withdraw his guilty plea. As such, we need not resolve where the burden of proof
21

lies in situations other than the narrow one before this Court. In light of Cooper,

Buckles, and 18 U.S.C. § 4241, we conclude only that in the particular

circumstances of this case, the district court did not err in placing the burden of

proof on Izquierdo as to his own motion to withdraw his guilty plea based on

incompetency. 

B. Expert opinions

Given that the district court correctly allocated the burden of proof, we next

consider Izquierdo’s argument that the district court abused its discretion in

denying his motion to withdraw his plea of guilty. Izquierdo’s main contention is

that the district court erred in rejecting Haber’s opinion and in considering

Lucking’s revised opinion as to Izquierdo’s competency at the time of his plea. 

 A district court’s competency determination is primarily factual in nature. 

See Hogan, 986 F.2d at 1371. Moreover, in Hogan, which involved a challenge to

the district court’s finding that the defendant was competent, this Court concluded

that “‘[a] finding of fact is clearly erroneous only when we are left with a definite

and firm conviction that a mistake has been committed.’” Id. at 1372 (citation

omitted). We further indicated that in reviewing a district court’s findings of fact

for clear error, we must give “‘due regard’ to the trial court’s opportunity to assess

the credibility of witnesses,” and noted that our review of a district court’s
22

competency determination is “deferential.” Id. (citation omitted). 

The record here contains expert opinions that differ in their conclusions as to

Izquierdo’s competence. “Where there are two permissible views of the evidence,

the factfinder’s choice between them cannot be clearly erroneous.” Anderson v.

City of Bessemer City, 470 U.S. 564, 574, 105 S. Ct. 1504, 1511 (1985); see also

United States v. De Varon, 175 F.3d 930, 945 (11th Cir. 1999).

Given the different expert opinions, Izquierdo mainly argues that the district

court erred in considering Lucking’s revised opinion. We disagree. Here, the First

FMC Report reflects that even at the time of the first evaluation, Lucking had some

concerns about Izquierdo possibly malingering. Specifically, in the First FMC

Report, Lucking noted that Izquierdo had performed worse on the RAVLT than

moderately impaired Alzheimer’s and Parkinson’s disease patients; that Izquierdo

may have been exaggerating his level of impairment on the BCT; and that

Izquierdo’s performance on the VIP “probably [did] not reflect his true ability.” 

Thus, it is not surprising that after Lucking was presented with Diaz’s testimony at

the first competency hearing, Lucking wanted to retest and reevaluate his data and

opinion about Izquierdo. It is undisputed that Lucking was unaware of Diaz’s

allegations at the time he originally examined Izquierdo, and that Lucking was

only informed of Diaz’s story on the date of the first competency hearing. Lucking
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candidly admitted that he needed to perform additional testing because of the new

information. Lucking then conducted additional testing, and the Second FMC

Report adequately explains why Lucking revised his previous opinion and found

Izquierdo competent. We also note that Haber, a psychologist, spent a maximum

of ten hours examining Izquierdo on two different days. By contrast, Lucking, a

psychiatrist, studied Izquierdo for several months during Izquierdo’s stays at

Butner and had the benefit of the observations and information collected about

Izquierdo by his forensic team. Lucking undisputedly examined Izquierdo more

closely than did Haber, and he provided a reasonable explanation for changing his

opinion. As such, we cannot say that the district court committed clear error in

crediting Lucking’s revised opinion that Izquierdo was competent. 

Furthermore, the district court was not bound by Haber’s opinion or the First

FMC Report. It is well-settled that expert opinion as to competency is not binding

on the trier of fact if there is reason to discount it. Strickland v. Francis, 738 F.2d

1542, 1552 (11th Cir. 1984). Here, the magistrate judge’s R&R, which the district

court adopted, provided cogent reasons for discounting Haber’s opinion. 

Moreover, as discussed above, there was ample reason for Lucking’s change of

opinion from the First FMC Report to the Second FMC Report. The district court

did not clearly err in rejecting Haber’s opinion, in crediting Lucking’s revised
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opinion, and in finding Izquierdo competent. 

IV. Conclusion

For the foregoing reasons, we affirm the district court’s denial of Izquierdo’s

motion to withdraw his guilty plea and, in turn, affirm his convictions.

AFFIRMED.