UNITED STATES of America, Plaintiff-Appellee, v. Julio MARTINEZ-HERNANDEZ, Defendant-Appellant

MEMORANDUM

Julio Martinez-Hernandez (“Martinez”) appeals his conviction for being an alien found in the United States without permission following deportation pursuant to 8 U.S.C. § 1326, contending that he was incompetent to stand trial. We reverse.

We review Martinez’s argument concerning his competency to stand trial for clear error. United States v. Frank, 956 F.2d 872, 874 (9th Cir.1992). The district court clearly erred in its determination that the government met its burden of demonstrating by a preponderance of the evidence that Martinez was competent to stand trial. Id. at 875. The government failed to demonstrate that Martinez possessed a “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per cu-riam) (internal quotation marks omitted); see also 18 U.S.C. § 4241(d) (requiring a defendant to be declared mentally incompetent if he is “unable ... to assist properly in his defense”).

As in United States v. Hoskie, 950 F.2d 1388, 1392 (9th Cir.1991) (holding that the district court committed clear error by finding the defendant competent to stand trial), government and defense experts agreed on Martinez’s diagnosis, and both concluded that he was not malingering. The experts merely disagreed as to the ultimate inferences to be drawn from the diagnoses as they bore upon the question of Martinez’s competency. Nothing in the testimony of the government’s expert, however, refuted the defense’s evidence that Martinez was unable to consult with his lawyer with a reasonable degree of rational understanding. Thus, the district court clearly erred by determining that the government demonstrated that Martinez was competent to stand trial.

We REVERSE the conviction and the district court’s finding that Martinez was competent to stand trial, and VACATE the sentence. We REMAND lor the district court to decide whether to conduct a further competency hearing and to require Martinez to submit to further evaluation pursuant to 18 U.S.C. §§ 4241(a), (c), and 4247, or whether to commit Martinez directly to the custody of the Attorney General pursuant to 18 U.S.C. § 4241(d).

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

GRABER, Circuit Judge,

dissenting:

I respectfully dissent.

The district court carefully and reasonably explained why Dr. Carroll’s conelu-sions about competence were persuasive. Even more importantly, the court described Defendant’s demeanor and participation in the proceedings. These personal observations, in addition to the expert evidence, caused the court to find that Defendant was in fact competent to stand trial. Unlike in United States v. Hoskie, 950 F.2d 1388, 1392 (9th Cir.1991), where “the district court itself was not convinced that Hoskie was competent, but was unwilling to find incompetency” because of the defendant’s dangerousness, here the court plainly was convinced that Defendant had the requisite ability, at the time of trial, to consult with counsel and understand the proceedings. Accordingly, I would not find clear error and would affirm.