United States v. Gary Rickert, Sr.

Filing

OPINION FILED - THE COURT: ROGER L. WOLLMAN, STEVEN M. COLLOTON and DUANE BENTON. Steven M. Colloton, Authoring Judge (PUBLISHED) [3933468] [11-1675]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-1675
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United States of America,
Appellee,
v.
Gary W. Rickert, Sr.,
Appellant.

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* Appeal from the United States
* District Court for the
* Eastern District of Missouri.
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Submitted: December 15, 2011
Filed: July 19, 2012
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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
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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 court1 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.

1

The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.

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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
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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’s attorney 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.

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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
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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 (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.
2

The government moved to dismiss the portion of this appeal concerning
competency on the ground that Rickert waived his right to appeal “non-sentencing
issues,” which was defined to encompass “all non-jurisdictional issues.” The
government concedes that the balance of the appeal may proceed, because Rickert did
not waive the right to appeal “sentencing issues” if the court did not impose a sentence
within the range recommended by the parties. We elect to bypass the possibility of
a waiver and address the appeal on the merits. Cf. United States v. Bines, 309 F.
App’x 580, 581 n.1 (3d Cir. 2009); United States v. General, 278 F.3d 389, 399 n.4
(4th Cir. 2002).
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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 (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. “[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 (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 713, 723 (8th Cir. 2011).
Rickert contends that several aspects of the record, taken together, show
reasonable cause to believe that he was incompetent. There are countervailing
considerations with respect to each.
Rickert relies on observations made by counsel at the October sentencing. His
attorney represented that Rickert seemed confused and was unable to follow questions
counsel posed to him regarding the presentence report and the forged letters that he
submitted to the court. Trial counsel’s opinion is “unquestionably a factor which
should be considered.” Drope, 420 U.S. at 177 n.13. But the court need not “accept
without question a lawyer’s representations concerning the competence of his client,”
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id., and the district court here had sound reasons to discount counsel’s assertions.
Counsel’s report stemmed solely from her interactions with Rickert. Rickert had just
attempted to deceive the court by submitting false documents after a conviction for
fraud. The court viewed the motion with “a high level of skepticism” because of
“doubts that the Court ha[d] about Mr. Rickert’s credibility.” The district court was
in a superior position to evaluate Rickert’s credibility and the potential for
malingering, and we are reluctant to second-guess its assessment.
Rickert also points to his history of mental illness, including his experience with
electroshock therapy, and his hospitalizations in September and October 2010. A
defendant’s mental health is a fact to be considered in determining whether reasonable
cause to doubt competency exists, but “[p]resence of a mental illness does not equate
with incompetency.” United States v. Whittington, 586 F.3d 613, 618 (8th Cir. 2009)
(internal quotation omitted). Indeed, the district court was informed that Rickert was
diagnosed in September 2001 with bipolar disorder with psychotic features, but found
competent to stand trial in 2002 after a mental competency examination. The proper
focus of the inquiry is not whether Rickert exhibited mental illness, but whether there
was reasonable cause to believe that he could not understand the nature and
consequences of the proceedings or assist properly in his defense. The district court
thought it significant that as of the October sentencing, the court had “never received
a single letter or report from [a] physician who has been involved in Mr. Rickert’s
care” that suggested incompetency.
Rickert was hospitalized in September 2010 after reporting auditory
hallucinations and exhibiting signs of severe paranoia. During his stay, Rickert told
a social worker that he was unaware of an upcoming court date in October, and
“thought everything was resolved.” He was discharged after ten days with a diagnosis
of schizoaffective disorder and a treatment plan. The medical records reflect,
however, that Rickert responded to medication and was stable upon his release from
the hospital. The discharge report notes that he was “[a]lert and oriented” upon
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release, and that he displayed average intellect at that time. Rickert’s treatment plan
was limited to a follow-up appointment.
Rickert was admitted to the hospital again in October 2010 after police were
summoned to his residence. The police report shows that on October 10, 2010, an
officer with the Creve Coeur Police Department responded to a distress call at
Rickert’s home and found him living in “an unhealthy condition.” Police found feces
and urine on the floors and bedding, and there was old, cooked food on the stove.
Rickert told officers that he suffered from bipolar disorder, schizophrenia, and acute
anxiety disorder, but had not been taking his medications for those conditions.
Rickert was transferred to a hospital and diagnosed with severe schizophrenia.
The sentencing hearing was convened two days later, however, and the district
court observed that Rickert was “remarkably lucid and intelligent” in delivering an
allocution before the formal imposition of sentence. Rickert argues that we should not
place too much emphasis on the allocution, because “many people with memory or
comprehension problems, can nevertheless speak lucidly.” The significance of
Rickert’s allocution, however, is not only that it was well spoken, but also that it
demonstrated Rickert’s understanding of the proceedings. He addressed several
salient issues, saying that he thought he had presented the court with information
about his mental condition by providing records to his former counsel, and that he
wished his son and doctor were present to explain the “circumstances of” the false
letters that he submitted. He also displayed an understanding of the legal system and
the charges against him, citing specific properties involved in the fraudulent scheme,
his efforts to minimize the losses incurred by those he defrauded, and proceedings in
another court.
The Supreme Court has allowed that in some circumstances, “a defendant’s
demeanor during trial may be such as to obviate the need for extensive reliance on
psychiatric prediction concerning his capabilities.” Drope, 420 U.S. at 179 (internal
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quotation omitted); see United States v. Crawford, 487 F.3d 1101, 1105 (8th Cir.
2007). Mental alertness and understanding during court proceedings were not enough
to dispense with a competency hearing in Robinson, where there was uncontradicted
testimony that the accused had exhibited a history of “pronounced irrational
behavior.” 383 U.S. at 386. Nor was the court’s assessment of the defendant’s
demeanor sufficient in Drope, where the accused (1) submitted a report of a
psychiatric doctor stating that the defendant “is a very neurotic individual” who
suffered from mental illness and “needs the aid of a psychiatrist,” (2) attempted to
choke to death his wife (the alleged victim) on the eve of trial despite her previous
desire to forego prosecution, (3) attempted suicide during the trial, and (4) was absent
for a crucial portion of his trial. 420 U.S. at 164 n.1, 179-80. On the other hand, the
Seventh Circuit held that a district court did not err in denying a competency
determination based on the court’s observations of the defendant at sentencing, even
though the defendant had an extensive history of mental illness. See United States v.
Clark, 114 F. App’x 239, 245-46 (7th Cir. 2004).
We must consider the record as a whole, including the statements of Rickert’s
counsel, the evidence of Rickert’s mental illness, the district court’s legitimate
concerns about Rickert’s possible malingering, and the court’s personal observations
of Rickert during the sentencing proceeding. We must also bear in mind the district
court’s institutional advantage over the court of appeals in evaluating the demeanor
of the defendant and the statements of counsel about the defendant’s mental state. Cf.
Gall v. United States, 552 U.S. 38, 52 (2007). Having reviewed the relevant records
and transcripts, we think the information cited in support of the motion was not so
strong as to overcome the district court’s reservations about Rickert’s credibility and
the court’s observations that Rickert was lucid and intelligent during the sentencing
proceedings. We conclude that the court did not abuse its discretion in finding no
reasonable cause to believe that Rickert was incompetent. The district court thus did
not commit reversible error in refusing to order a competency hearing.

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B.
Rickert also contends that the district court committed procedural errors at
sentencing. We review the district court’s factual findings for clear error, and its
interpretation of the sentencing guidelines de novo. See United States v. Quevedo, 654
F.3d 819, 822 (8th Cir. 2011).
Rickert first argues that the court erred by imposing a two-level sentencing
enhancement for obstruction of justice. He contends that the forged letters that he
submitted to the trial court were not material, and that their submission should not
trigger an enhancement under USSG § 3C1.1. The sentencing guidelines provide for
a two-level upward adjustment when “the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administration of justice with respect to . . .
sentencing.” USSG § 3C1.1. The commentary includes a nonexhaustive list of
situations that call for the enhancement, including when a defendant “provide[s]
materially false information to a judge or magistrate judge.” USSG § 3C1.1,
comment. (n.4(F)). The guidelines define material evidence as “evidence . . . that, if
believed, would tend to influence or affect the issue under determination.” USSG
§ 3C1.1, comment. (n.6).
We conclude that the district court properly applied the enhancement. The
parties do not dispute that Rickert submitted fraudulent letters to the court with his
sentencing memorandum. The letters purported to notify the court of a substance
abuse problem that Rickert had not disclosed in his interview with the probation
office.
When determining an appropriate sentence, the district court is required to
consider the sentencing factors listed in 18 U.S.C. § 3553(a). Gall, 552 U.S. at 49-50.
Whether Rickert has a history of drug abuse is relevant to the defendant’s “history and
characteristics,” 18 U.S.C. § 3553(a)(1), and the need for a sentence “to provide the
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defendant with needed . . . medical care [and] other correctional treatment.” Id.
§ 3553(a)(2)(D). The district court also noted at resentencing that it often recommends
participation in the Bureau of Prison’s 500-hour Residential Drug Treatment Program
when presented with evidence of a defendant’s substance abuse problem. The Bureau
of Prisons may reduce an inmate’s sentence by up to twelve months for successful
completion of this program. 18 U.S.C. § 3621(e)(2)(B).
The content of the forged letters could have affected both the length of
Rickert’s sentence and the recommended conditions of his imprisonment. Therefore,
the court did not clearly err in determining that these letters were material to Rickert’s
sentencing.
C.
Rickert next argues that the district court erred in denying him a three-level
reduction for acceptance of responsibility under USSG § 3E1.1. A defendant who
obstructs justice ordinarily is not entitled to this reduction, but he may be eligible in
an “extraordinary” case. See USSG § 3E1.1 comment. (n.4); United States v. Smith,
665 F.3d 951, 957 (8th Cir. 2011). The district court’s determination of whether a
defendant has accepted responsibility is “entitled to great deference” and will be
reversed only if it is clearly erroneous. United States v. Wallenfang, 568 F.3d 649,
661 (8th Cir. 2009).
The district court did not clearly err in denying Rickert the reduction. In
determining whether a defendant presents an extraordinary case, district courts should
consider the totality of the circumstances, including the nature of the defendant’s
obstructive conduct and the degree of the defendant’s acceptance of responsibility.
United States v. Honken, 184 F.3d 961, 968 (8th Cir. 1999). Other relevant factors
include whether the defendant “voluntarily terminated his obstructive conduct” and

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whether the defendant “admitted and recanted his obstructive conduct, or whether he
denied obstruction of justice at sentencing.” Id.
The district court determined that Rickert made false representations to the
court—submitting forged letters along with his sentencing memorandum—in an
attempt to influence the court’s sentencing decision. This sort of post-plea obstructive
conduct almost certainly disqualifies a defendant from receiving an acceptance-ofresponsibility adjustment. Honken, 184 F.3d at 970; see also United States v. Brown,
539 F.3d 835, 841 (8th Cir. 2008). On top of that, Rickert did not voluntarily
terminate his obstructive conduct. The letters were withdrawn only after the probation
office informed Rickert’s counsel, at the August sentencing, that the letters were false.
Rickert also has not shown that his cooperation constituted “more than a guilty plea,”
Honken, 184 F.3d at 970, or that his “cooperation with authorities . . . distinguish[es]
his case from a run of the mill case.” Brown, 539 F.3d at 841.
Rickert attempted to obstruct justice and did not demonstrate through
acceptance of responsibility that his case was “extraordinary.” The district court thus
did not err in denying him a downward adjustment for acceptance of responsibility.

D.
Rickert argues finally that the district court erred by “imposing or lengthening
a prison term to promote an offender’s rehabilitation” in violation of 18 U.S.C.
§ 3582(a). Tapia v. United States, 131 S. Ct. 2382, 2391 (2011). We conclude that
the court did not err.
While a sentencing court may not impose or lengthen a prison sentence for the
purpose of rehabilitation, the court “may urge the BOP to place an offender in a prison
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treatment program.” Id. at 2392. A court also “commits no error by discussing the
opportunities for rehabilitation within prison.” Id; see also United States v. Werlein,
664 F.3d 1143, 1147 (8th Cir. 2011) (per curiam); United States v. Blackmon, 662
F.3d 981, 987 (8th Cir. 2011).
The record does not show that the district court imposed or lengthened Rickert’s
sentence to promote his rehabilitation. The court recommended to the Bureau of
Prisons that he “continue to receive treatment for [his] mental health . . .
impairments,” and stated that it thought that the “Bureau of Prisons is capable of
addressing Mr. Rickert’s medical and mental health needs.” These comments show
only that the court urged the Bureau of Prisons to treat Rickert’s health, and that the
court believed the opportunities for rehabilitation within prison were adequate. See
Tapia, 131 S. Ct. at 2392. We therefore conclude that the district court did not
improperly increase Rickert’s sentence for the purpose of promoting rehabilitation.
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For the foregoing reasons, the judgment of the district court is affirmed.
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