United States v. Rickert

• Decision Date: 14 September 2012
• Docket Number: No. 11–1675.,11–1675.
• Citation: 685 F.3d 760
• Parties: UNITED STATES of America, Appellee, v. Gary W. RICKERT, Sr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

685 F.3d 760

UNITED STATES of America, Appellee,

v.Gary W. RICKERT, Sr., Appellant.

No. 11–1675.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 15, 2011.

Filed: July 19, 2012.

Rehearing and Rehearing En Banc Denied Sept. 14, 2012.

Diane Dragan, FPD, argued, St. Louis, MO, for appellant.

Thomas Christian Albus, USA, argued, St. Louis, MO, for appellee.

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

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 determination and his sentence. We affirm.

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 residential properties in Missouri. The Rickerts' loan applications included false and material statements and were accompanied by fraudulent income tax returns. On June 11, 2009, a grand jury charged Rickert and his son with eight counts of bank fraud and 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 charges against him. Rickert's sentencing hearing was set for August 12, 2010.

Prior to the August sentencing, Rickert filed objections to the presentence report prepared by the United States Probation Office. Attached to the objections were letters, purportedly written by health care professionals, discussing Rickert's addiction to pain relievers and his mental health issues. The letters also requested that Rickert be allowed to participate in drug and alcohol rehabilitation programs while in prison. At the August sentencing, however, the probation office informed Rickert's attorney that the letters—which Rickert had given to his attorney—were forgeries. Rickert's attorney promptly moved to withdraw his objections to the PSR and to be granted leave to withdraw from the case. The district court granted the motions and appointed an assistant federal public defender, who had previously represented Rickert, to serve as counsel. Sentencing was rescheduled for October 12, 2010.

Rickert has a long history of mental illness. He suffers from schizophrenia, bipolar disorder, and major depression, among 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 schizoaffective disorder and a treatment plan. He was admitted to the hospital again on October 10, 2010—two days prior to the October sentencing—following an emergency call to his residence after he had 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 client, he was confused, suffered from memory lapses, and “ha[d] significant difficulty tracking what [was] going on.” Counsel also argued that Rickert's electric shock therapy and recent 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, concluding that there was insufficient evidence to show reasonable cause to believe that Rickert was currently suffering from a “mental disease or defect that affects 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 medical records to justify a hearing and examination, and the court observed that neither the court nor Rickert'sattorney could determine if Rickert was malingering. The 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.

After the October sentencing, Rickert filed a Motion for Order Correcting Clear Errors under Federal Rule of Criminal Procedure 35(a). He first argued that the district court erred by denying his request for a mental evaluation. He provided two exhibits—records from the September 2010 hospitalization, and a police report detailing the events leading to his October 2010 hospitalization—that supplemented the record in support of his motion for competency 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 revised report was filed on October 4, eight days before the October hearing. Rickert claimed 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 Rule 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 hearing 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 presentence 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 information that indicates that Mr. Rickert presently suffers from any condition that 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 the imposition of a sentencing enhancement for obstruction of justice pursuant to USSG § 3C1.1, and the denial of a reduction for 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 the guideline range and sentenced Rickert to 72 months' imprisonment.

On appeal, Rickert argues that the district court abused its discretion in denying him a competency evaluation. He also challenges his sentence, arguing that the district court erred in applying a sentencing enhancement for obstruction of justice, and in denying a sentencing reduction for acceptance of responsibility. Finally, Rickert claims that the court erred by improperly 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 an incompetent person is a violation of due process, Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (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. Rahim, 431 F.3d 753, 759 (11th Cir.2005). A defendant is competent if he “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and “has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (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 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). The Constitution also requires an adequate hearing if there is sufficient doubt about the accused's competence. Robinson, 383 U.S. at 385–86, 86 S.Ct. 836. “[E]vidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required,” and “even one of these factors standing alone may, in some circumstances, be sufficient.” Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (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...