Noriega-Encinas

MEMORANDUM *

Jose Noriega-Encinas, a native and citizen of Mexico, appeals his conviction for illegal re-entry into the United States after deportation, in violation of 8 U.S.C. § 1326 , on the ground the district court erred by finding him competent to stand trial.

First, the district court did not commit plain error by failing sua sponte to order an additional competency hearing the week before trial, because three other competency hearings in the previous ten years, including one six months before trial, had determined Noriega-Encinas was competent to stand trial and that he might have been malingering. See Odle v. Woodford, 238 F.3d 1084, 1087 (9th Cir.2001) (holding a competency hearing is necessary only if a reasonable judge would have a “bona fide” doubt about the defendant’s competence).

Second, the district court’s query whether Noriega-Encinas wished to proffer evidence or make a statement regarding his competency did not “shift” the burden of proof. It was an inquiry as to whether Noriega-Encinas wished to present evidence. Further, even if it had done so, the Supreme Court has held the allocation of the burden of proof “will affect competency determinations only in…