United States v. Joel Dreyer

dissenting from the denial of rehearing en banc:

By failing to take this case en banc we have made a hash of the plain error standard. Under the guise of a plain error review, the majority has conducted a de novo analysis, concluding that the district court plainly erred by not sua sponte ordering a competency hearing prior to sentencing. The majority’s decision is not only irreconcilable with our prior precedents, it also will wreak havoc on sentencing proceedings. In the wake of this decision, district judges may feel compelled to order a competency hearing any time a defendant suffers from a medical condition and, as a result, cannot “expres[s] himself appropriately or in a manner that could assist in his defense.” United States v. Dreyer, 693 F.3d 803, 813 (9th Cir.2012).

Federal courts nationwide pronounced 86,000 sentences in 2011; 21,000 of these sentences were pronounced in the Ninth Circuit alone. United States Sentencing Commission, Statistical Information Packet 3 tbl. 2 (2011). Defendants with medical and psychological deficiencies that prevent or impair their ability to allocute are not infrequently sentenced, and district courts, quite properly, do not routinely…

dissenting:

I respectfully dissent. I cannot agree that it was plain error for the district court not to sua sponte order a competency hearing after Joel Dreyer pleaded guilty and received the benefit of his plea agreement but before sentencing. Dreyer was represented by competent counsel and had been examined by a number of doctors. Although all agreed that he suffered from frontotemporal dementia (“FTD”), none opined that Dreyer was not competent to participate in his sentencing. Moreover, although Dreyer chose not to allocute, he was responsive when the district judge addressed him personally, stating that he respected the judge and appreciated her comments. Even if the trial judge might have issued a sua sponte order for further psychiatric and medical evaluations, failure to do so was not plain error.

I do not question the majority’s genuine doubt regarding Dreyer’s competence. However, this does not allow it to substitute its opinion for what a reasonable judge would be expected to experience. Cf. Chavez v. United States, 656 F.2d 512, 515-16 (9th Cir.1981) (overruled on other grounds). The rule reflects the fact that appellate judges viewing the cold record are not in as…

ORDER

The opinion and dissent filed August 21, 2012 are withdrawn. A superseding opinion and dissent was circulated to the Court on October 12, 2012 and is being filed concurrently with this order.

After the superseding opinion and dissent was circulated, a judge sua sponte requested a vote on whether to rehear the matter en banc. Although no petition for rehearing or petition for rehearing en banc was filed, the parties were given notice of the superseding opinion and dissent and permitted the opportunity to state their positions on whether the matter should be reheard en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc reconsideration. Fed. R.App. P. 35.

No future petition for rehearing or petition for rehearing en banc will be entertained. The clerk is directed to issue the mandate forthwith.

Judge Callahan would have the mandate issue after seven days as generally provided by Federal Rule of Appellate Procedure 41(b).

FILED

JAN 07 2013

FOR PUBLICATION MOLLY C. DWYER, CLERK

U .S. C O U R T OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-50631

Plaintiff - Appellee, D.C. No. 5:08-cr-00041-VAP-1 Central District of California, v. Riverside

JOEL STANLEY DREYER,

ORDER

Defendant - Appellant.

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

The opinion and dissent filed August 21, 2012 are withdrawn. A

superseding opinion and dissent was circulated to the Court on October 12, 2012

and is being filed concurrently with this order.

After the superseding opinion and dissent was circulated, a judge sua sponte

requested a vote on whether to rehear the matter en banc. Although no petition for

rehearing or petition for rehearing en banc was filed, the parties were given notice

of the superseding opinion and dissent and permitted the opportunity to state their

positions on whether the matter should be reheard en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en…