FILED
                                                                   United States Court of Appeals
                                     PUBLISH                               Tenth Circuit

                     UNITED STATES COURT OF APPEALS                       October 20, 2020

                                                                        Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                           Clerk of Court
                        _________________________________

UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                                        No. 19-2160

MARTIN PEREA,

     Defendant - Appellant.
                     _________________________________

                    Appeal from the United States District Court
                          for the District of New Mexico
                         (D.C. No. 1:15-CR-03052-WJ-1)
                      _________________________________

Sylvia Baiz, Assistant Federal Public Defender, Albuquerque, New Mexico, for
Defendant-Appellant.

Alexander M.M. Uballez, Assistant United States Attorney (John C. Anderson, United
States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-
Appellee.
                      _________________________________

Before PHILLIPS, BALDOCK, and McHUGH, Circuit Judges.
                   _________________________________

BALDOCK, Circuit Judge.
                    _________________________________

      Defendant filed this interlocutory appeal challenging the district court’s order

finding him competent to stand trial. Because a competency determination is a non-
final order and the collateral order doctrine does not apply, we grant the

Government’s motion and dismiss this appeal for lack of jurisdiction.

                                        ***

      On August 25, 2015, a federal grand jury indicted Defendant on nine counts of

production of a visual depiction of a minor engaging in sexually explicit conduct in

violation of 18 U.S.C. § 2251(a), (e) and 18 U.S.C. § 2256. On September 7, 2016,

Defendant produced a report by Dr. Alexander J. Paret, which opined that Defendant

lacked competency to stand trial. In light of this report, the Government moved for a

psychiatric and psychological examination of Defendant, and Defendant was sent for

evaluation.

      On May 11, 2017, Dr. Lisa Bellah, a licensed psychologist with the Federal

Bureau of Prisons (“BOP”), reported that Defendant suffered from a mental disease

or defect which rendered him unable to understand the nature and consequences of

the proceedings against him or to properly assist in his defense. Dr. Bellah thus

determined Defendant was presently incompetent to stand trial.          But she also

suggested that Defendant could achieve competency within a reasonable amount of

time if he were educated on criminal matters. In response, the district court entered

an order finding Defendant incompetent to stand trial. And upon the Government’s

motion, the court ordered that Defendant be committed for treatment and restoration.

      On February 5, 2018, Dr. Jacob X. Chavez, another psychologist with the

BOP, reported that Defendant was incompetent and substantially unlikely to be

restored to competency in the foreseeable future. Dr. Chavez thus recommended that

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Defendant be evaluated pursuant to 18 U.S.C. § 4246(b) to determine his

dangerousness. Given Dr. Chavez’s recommendation, the district court ordered a risk

assessment. During the pre-risk assessment and risk assessment interviews, however,

Dr. Chavez observed that Defendant presented as “notably different” from his

previous presentation, revealing a “higher level of understanding than portrayed

previously.” Based in part on this observation, Dr. Chavez issued a new report which

found Defendant was, more likely than not, competent to proceed.

      On May 22, 2019, and June 20, 2019, the district court held competency

hearings. At those hearings, Dr. Chavez testified that Defendant was competent to

stand trial, while Dr. Eric Westfried, a doctor hired by Defendant, maintained

Defendant lacked such capacity. Following these hearings, the district court entered

an order finding Defendant competent to proceed to trial.

      This interlocutory appeal follows, in which Defendant argues the district court

erred in concluding he is competent to stand trial. The Government has moved to

dismiss the appeal for lack of jurisdiction, contending there was no final decision

under 28 U.S.C. § 1291 and the collateral order doctrine does not apply. We agree

with the Government. For the following reasons, we grant the Government’s motion

and dismiss this appeal for lack of jurisdiction.

                                          ***

      As a general rule, we only have jurisdiction to review “final decisions of the

district courts.” 28 U.S.C. § 1291. This rule is known as the final judgment rule, and

in criminal cases, it generally requires “that a defendant await conviction and

                                            3
sentencing before raising an appeal.” United States v. Deters, 

, 579

(10th Cir. 1998).     The Supreme Court has permitted a departure from the final

judgment rule “only when observance of it would practically defeat the right to any

review at all.”     Flanagan v. United States, 

, 265 (1984) (quoting

Cobbledick v. United States, 

, 324–25 (1940)).

      To this end, departures from the final judgment rule are warranted only for the

“limited category of cases falling within the ‘collateral order’ exception delineated in

Cohen.”

v. Hollywood Motor Car Co., 

, 265

(1982)). Under the collateral order doctrine, we may hear an appeal from a non-final

order if that order: (1) “conclusively determine[s] the disputed question”; (2)

“resolve[s] an important issue completely separate from the merits of the action”; and

(3) is “effectively unreviewable on appeal from a final judgment.”

Lybrand v. Livesay, 

, 468 (1978)). The Supreme Court has

time and again cautioned that “the class of cases capable of satisfying this ‘stringent’

test should be understood as ‘small,’ ‘modest,’ and ‘narrow.’” United States v.

Wampler, 

, 1334 (10th Cir. 2010) (Gorsuch, J.) (quoting Digital Equip.

Corp. v. Desktop Direct, Inc., 

, 868 (1994); Swint v. Chambers Cnty.

Comm’n, 

, 42 (1995); Will v. Hallock, 

, 350 (2006); Mohawk

Indust., Inc. v. Carpenter, 

, 113 (2009)). What’s more, the Court has

emphatically instructed us that “the Cohen test should be applied with special—in

fact, ‘the utmost’—‘strictness’ in criminal cases ‘[b]ecause of the compelling interest

in prompt trials.’” Id. (quoting 

); see also Abney v. United

                                           4
States, 

, 657 (1977) (“[T]he delays and disruptions attendant upon

intermediate appeal . . . are especially inimical to the effective and fair administration

of the criminal law.” (internal quotation omitted)).

      In this case, the competency order undoubtedly satisfies the second condition

for application of the collateral order doctrine.      That is, the competency order

resolves an important issue completely separate from the merits. But the order fails

to satisfy either of the other two conditions—it neither conclusively determines

Defendant’s competency, nor is it effectively unreviewable on appeal.

      First, an order finding a defendant competent to stand trial does not

“conclusively determine” the defendant’s competency. By statute, the Government

or a defendant may move for a competency determination “[a]t any time after the

commencement of a prosecution for an offense and prior to the sentencing of the

defendant . . . .” 18 U.S.C. § 4241(a) (emphasis added). Thus, as the Supreme Court

has recognized, “[e]ven when a defendant is competent at the commencement of his

trial, a trial court must always be alert to circumstances suggesting a change that

would render the accused unable to meet the standards of competence to stand trial.”

Drope v. Missouri, 

, 181 (1975). This court has noted the same and

stressed that “a defendant must be competent throughout the entire trial.” McGregor

v. Gibson, 

, 954 (10th Cir. 2001) (emphasis added). Consequently, even

when a defendant presents with “demonstrable competency” during a pretrial

proceeding, “evidence of incompetency that [arises] during trial” may demand

reevaluation.

see also United States v. No Runner, 

, 964 (9th

                                            5
Cir. 2009) (holding “[a] pretrial order finding a defendant competent to stand trial

does not ‘conclusively determine’ the defendant’s competency”).

      Defendant nevertheless argues his intellectual disability is relatively static and

therefore not subject to change between now and sentencing. Because his condition

will not change, Defendant reasons the district court will not likely reconsider its

competency determination or order further evaluation. The law is clear, however.

The trial itself may furnish evidence of incompetency, which would necessitate

further inquiry into Defendant’s present ability to stand trial. See, e.g., 

(holding that a defendant’s “demeanor at trial” may establish a need for

further inquiry into the defendant’s competency); 

(explaining that a reasonable judge should have had doubts regarding the defendant’s

“continued competency to stand trial” given his “odd behavior at trial” and

“counsel’s repeated and vehement contentions [throughout trial] that his client was

unable to assist in his own defense”). Therefore, the district court’s order finding

Defendant competent to proceed to trial does not satisfy the first condition for

application of the collateral order doctrine because it does not conclusively determine

Defendant’s competency.

      Nor does the district court’s competency order meet the third condition for

application of the collateral order doctrine because the order is not “effectively

unreviewable on appeal.”       Defendant argues a competency determination is

effectively unreviewable on appeal from a final judgment because: (1) “attempting to

determine whether a defendant was competent at trial is retrospectively difficult”;

                                          6
and (2) an incompetent defendant has an absolute right not to be tried under the Fifth

Amendment. We are not persuaded.

       First, while the Supreme Court has acknowledged that “difficulties” in

“retrospectively determining” a defendant’s competency may arise, these difficulties

arise in cases where a competency determination would require “more information

than [the] record presents.” Dusky v. United States, 

, 402–03 (1960).

This is no such case. The record here is replete with psychiatric evaluations and

hundreds of pages of testimony from two separate doctors. On appeal from a final

judgment, this court will be able to review the record and adequately determine

whether Defendant was tried and convicted while incompetent. Indeed, this is an

inquiry we regularly undertake. See, e.g., Lay v. Royal, 

, 1315 (10th

Cir. 2017); Allen v. Mullin, 

, 1240 (10th Cir. 2004); Walker v. Att’y

Gen. for Okla., 

, 1344 (10th Cir. 1999). Thus, Defendant’s claim that

it is too difficult to retrospectively determine whether he was competent at the time

of trial is without merit.

       Defendant’s second claim—that an incompetent defendant has an absolute

right not to be tried—is equally without merit.      While the Supreme Court has

occasionally described incompetency in terms of a right not to be tried, see, e.g.,

Godinez v. Moran, 

, 396 (1993) (explaining “[a] criminal defendant may

not be tried unless he is competent”), the Court has not held that this right is

absolute. On the contrary, the Court has held that “[d]ouble jeopardy and Speech or

Debate rights are sui generis in this regard.” 

.

                                          7
      Our own precedent confirms this principle. In Wampler, we recognized that

“if the district court forces a defendant to go to trial after erroneously rejecting his

motion to dismiss predicated on a Sixth Amendment speedy trial violation or a

Fourth Amendment suppression argument, an important ‘right not to be tried’

guaranteed by those provisions might well be said to be effectively 

. But in the criminal context—where the Cohen doctrine must be applied with

the utmost strictness—we nonetheless held that “this isn’t enough to warrant

interlocutory appellate review.”

we explained:

      [T]he only time a criminal defendant’s claimed “right not to be tried”
      will justify interlocutory appellate review is when a “statutory or
      constitutional [provision] guarantee[s] that trial will not occur—as in
      the Double Jeopardy Clause (‘nor shall any person be subject for the
      same offence to be twice put in jeopardy of life or limb’), . . . or the
      Speech or Debate Clause (‘[F]or any Speech or Debate in either House,
      [the Senators and Representatives] shall not be questioned in any other
      Place’).” Only then—only when a statutory or constitutional provision
      itself contains a guarantee that a trial will not occur—may courts of
      appeals intervene prior to a final judgment to review the defendant’s
      claimed “right not to be tried.”

(citations omitted).

      No constitutional or statutory provision exists which guarantees an

incompetent defendant will not be subjected to trial.       And thus we cannot say

Defendant has an absolute right not to be tried. See United States v. Mandycz, 

, 225 (6th Cir. 2003) (“Unlike the protection afforded by absolute immunity

or the Double Jeopardy Clause, the incompetency of a criminal defendant does not

implicate an absolute right not to be tried.”). While Defendant’s “right not to be tried

or convicted while incompetent . . . deprives him of his due process right to a fair

                                           8
trial,” 

, this right can be vindicated by post-conviction

appellate review. See 

(explaining that a post-conviction

appeal may be an imperfect remedy, but “some meaningful review is available after

trial—after all, an appellate court can still undo an unlawful conviction”); No 

(holding that the right to a fair trial “can be protected adequately by

post-conviction appellate review”); 

(holding that

“competency determinations—unlike commitment orders—are not appealable as

collateral orders because they are fully reviewable following the final judgment of

the district court”); United States v. Gold, 

, 239 (2d Cir. 1986)

(explaining that “a ruling that the defendant is competent and must proceed to trial”

can “be effectively reviewed and remedied, if erroneous, on appeal from any final

judgment against him”). Accordingly, Defendant has an effective remedy on appeal

from the final judgment, and he cannot satisfy the third condition for application of

the collateral order doctrine.

                                         ***

       For the reasons provided herein, the collateral order doctrine does not apply to

the district court’s non-final order finding Defendant is competent to stand trial. We

therefore grant the Government’s motion and dismiss this appeal for lack of

jurisdiction.1




1
  Because we dismiss for lack of jurisdiction, Defendant’s pending motion to
supplement the record on appeal is denied as moot.
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