NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 23 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-30095

Plaintiff-Appellee, D.C. No. 2:13-cr-00322-RAJ-1 v.

LEWIS DEAN ARMSTRONG, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Submitted October 4, 2023 Seattle, Washington

Before: WARDLAW and M. SMITH, Circuit Judges, and MATSUMOTO,** District Judge.

Lewis Dean Armstrong appeals his 30-year prison sentence for violating 18

U.S.C. § 2241(c), Aggravated Sexual Abuse of a Minor, imposed on resentencing

following remand by this court. We have jurisdiction under 28 U.S.C. § 1291, and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kiyo A. Matsumoto, United States District Judge for the Eastern District of New York, sitting by designation. we affirm.

1. The district court did not err in finding Armstrong competent to

proceed with resentencing. At the sentencing stage, the assessment of competency

hinges on “whether the defendant is able to understand the nature of the

proceedings and participate intelligently to the extent participation is called for.”

United States v. Dreyer, 705 F.3d 951, 961 (9th Cir. 2013) (internal citation and

quotation marks omitted).

The district court properly relied on Dr. Ryan Nybo’s opinions in

determining that Armstrong was able to participate intelligently in the proceedings.

As the district court noted, Dr. Nybo considered Armstrong’s demeanor, previous

interviews, prior evaluations, medical records, and cognitive abilities, prior to

reaching his conclusions. Although previous evaluations from other doctors may

have supported a conclusion that Armstrong suffered from a delusional disorder at

resentencing, where “there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” United States v.

Mercardo-Moreno, 869 F.3d 942, 959 (9th Cir. 2017) (internal quotation marks

omitted). Furthermore, an “old psychiatric report indicating incompetence in the

past may lose its probative value by the passage of time and subsequent facts and

circumstances that all point to present competence.” Chavez v. United States, 656

F.2d 512, 518 (9th Cir. 1981). Even though the district court found Armstrong

2 22-30095 incompetent more than four years before the competency hearing at issue here

based on prior expert evaluation, the district court is permitted to assign greater

weight to one expert report than another.

The district court also correctly determined that Armstrong understood the

nature and consequences of the resentencing proceedings. After reviewing the

record, the district court found that Armstrong understood that he was convicted of

aggravated sexual assault, that he had been previously sentenced to a 20-year

prison term, and that the mandatory minimum for his offense of conviction was 30

years. The district court also found that Armstrong was aware that he was facing

resentencing, where he faced “the real probability that he would receive ten

additional years, based on the outcome of the prior appeal.” These findings were

clearly supported by, and sometimes explicitly drawn from, the record.

Accordingly, the district court did not err in finding that Armstrong was competent

to be resentenced.

2. The district court did not abuse its discretion in finding that

Armstrong’s eight-year delay in bringing a motion for a new trial was not due to

excusable neglect. See Fed. R. Crim. P. 33 Advisory Committee’s Note to 2005

Amendment (“[U]nder Rule 45(b)(1)(B), if for some reason the defendant fails to

file the underlying motion for new trial within [14 days after the verdict], the court

may nonetheless consider that untimely underlying motion if the court determines

3 22-30095 that the failure to file it on time was the result of excusable neglect.”). Pursuant to

the Pioneer-Briones framework, a court applies an equitable analysis to assess

whether neglect was excusable, considering at least four factors in particular: “(1)

the danger of prejudice to the opposing party; (2) the length of the delay and its

potential impact on the proceedings; (3) the reason for the delay; and (4) whether the

movant acted in good faith.” Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223-24

(9th Cir. 2000) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507

U.S. 380, 395 (1993)); see also Briones v. Riviera Hotel & Casino, 116 F.3d 379,

381 (9th Cir. 1997)). The district court concluded that because the motion was filed

“seven years after the verdict” and there was “no indication that there was excusable

neglect on the part of the attorneys” during that time, Armstrong failed “to justify

granting a variance . . . with the rule [33] requirements of when the appeal is

supposed to take place.” Although the district court did not explicitly weigh the

Pioneer-Briones factors when rendering its decision, we conclude that because the

Pioneer-Briones factors were fully briefed by the parties, the district court

presumably considered the submissions and was not required to explicitly analyze

each factor on the record. See M.D. by & through Doe v. Newport-Mesa Unified

Sch. Dist., 840 F.3d 640, 643 (9th Cir. 2016) (citation omitted), as amended (Nov.

18, 2016) (“The district court may consider the Pioneer factors without discussing

how much weight it gives to each.”). Accordingly, the district court did not abuse

4 22-30095 its discretion in finding that Armstrong’s nearly eight-year delay in bringing a

motion for a new trial was not due to excusable neglect.

AFFIRMED.

5 22-30095