and Submitted September 13, 2017 San Francisco, California
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
Michael B. Bigelow (argued), Sacramento, California, for
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.
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.
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
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. §
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
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 ...