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United States v. Bonnett

United States Court of Appeals, Ninth Circuit

October 10, 2017

United States of America, Plaintiff-Appellee,
v.
Daniel L. Bonnett, Defendant-Appellant.

          Argued and Submitted September 13, 2017 San Francisco, California

         Appeal from the United States District Court for the Eastern District of California D.C. No. 2:13-cr-00210-JAM-1 John A. Mendez, District Judge, Presiding

         COUNSEL

          Michael B. Bigelow (argued), Sacramento, California, for Defendant-Appellant.

          Matthew G. Morris (argued), Assistant United States Attorney; Camil A. Skipper, Appellate Chief; Phillip A. Talbert, United States Attorney; United States Attorney's Office, Sacramento, California; for Plaintiff-Appellee.

          Before: Mary M. Schroeder and Richard C. Tallman, Circuit Judges, and Robert H. Whaley, [*] District Judge.

         SUMMARY [**]

         Criminal Law

         Affirming a sentence for receipt and distribution of child pornography, the panel held that malingering may support an obstruction of justice enhancement pursuant to U.S.S.G. § 3C1.1.

         The panel explained that without any factual objections to resolve, there was no violation of Fed. R. Crim. P. 32. The panel rejected the defendant's challenge to an enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B) (2015) for distribution of pornography for a "thing of value."

          OPINION

          PER CURIAM

         Daniel Bonnett appeals his sentence following his guilty plea to one count of receipt and distribution of child pornography under 18 U.S.C. § 2252(a)(2). He received a below guideline sentence of 15 years' imprisonment followed by 25 years of supervised release. He challenges the two-level adjustment for obstruction of justice pursuant to U.S.S.G. § 3C1.1 and the five-level enhancement for distributing child pornography for a thing of value pursuant to U.S.S.G. § 2G2.2(b)(3)(B).

         The issue of first impression in this Circuit is whether an obstruction of justice enhancement may be founded upon a finding of malingering. The basis for the finding in this case was the court-ordered Psychiatric Evaluation that concluded Bonnett was feigning incompetency. Supporting the district court's finding of intentional malingering were observations that his institutional behavior differed when he was dealing with medical personnel than when he was interacting with other staff or fellow inmates, as well as his refusal to participate in the tests and medical examination intended to assist in the evaluation of his mental condition. Bonnett also refused to complete tests specifically designed to check for malingering and made damaging admissions on recorded jail phone calls with his wife.

         In his briefs, Bonnett nonetheless contends that permitting an obstruction of justice enhancement on the basis of his performance in a competency evaluation chills his exercise of the right to obtain a competency hearing. This is the same argument that has been raised and rejected in at least four other Circuits. See United States v. Wilbourn, 778 F.3d 682, 684 (7th Cir. 2015); United States v. Batista, 483 F.3d 193, 197-98 (3d Cir. 2007); United States v. Patti, 337 F.3d 1317, 1325 (11th Cir. 2003); United States v. Greer, 158 F.3d 228, 236-38 (5th Cir. 1998). The lead decision is Greer, which relied on the Supreme Court's decision in United States v. Dunnigan, 507 U.S. 87 (1993). There, the Supreme Court upheld an obstruction enhancement for a defendant who had committed perjury. Dunnigan, 507 U.S. at 96. The Supreme Court held that the enhancement was justified on the basis of ...


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