United States of America v. Dustin Lee McKee

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DUSTIN LEE MCKEE,
Defendant-Appellant.
No. 19-10326
D.C. No.
4:16-cr-01885-JAS-BGM-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Submitted February 4, 2021**
Phoenix, Arizona
Before: W. FLETCHER, MILLER, and HUNSAKER, Circuit Judges.
Dustin McKee appeals his conviction and sentence for conspiracy to import
methamphetamine. McKee contends that the district court erred by finding him
competent before accepting his guilty plea and by applying a reduction under the
advisory Sentencing Guidelines for acceptance of responsibility of only two levels
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
FEB 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
rather than three. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a), and we affirm in part and dismiss in part.
1. The district court did not commit clear error when it credited the third
and final psychological report in this case, in which Dr. Cochrane opined that
McKee was competent to stand trial. See United States v. Gastelum-Almeida, 298
F.3d 1167, 1171 (9th Cir. 2002). Dr. Cochrane’s report relied on a four-month-long
evaluation of McKee at the federal medical center in Butner, North Carolina. The
report addressed the main issue giving rise to concerns about McKee’s
competency—his erroneous legal theory related to his belief that the government
had previously dismissed several counts of his indictment—and concluded that
even though the theory was baseless, it was not delusional in any clinical sense.
Before the district court, defense counsel did not dispute the report’s correctness
and initially told the court that McKee was “doing a lot better” since returning
from the federal facility. The record also reflects that McKee never exhibited any
inappropriate “demeanor in court” when he pleaded guilty or at any other hearing.
See Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir. 1997). And the earlier
psychological report—which had deemed McKee incompetent—had opined that
McKee “may be able to be restored [to competency] within a reasonable period of
time.” Even in the face of some conflicting evidence, “it was not clearly erroneous
for the district court to find that the evidence weighed in favor of a competency

-- 2 of 4 --

3
finding.” Lewis v. Ayers, 681 F.3d 992, 999 (9th Cir. 2012).
2. To the extent that McKee argues that the district court erred by not
sua sponte holding a competency hearing before accepting his guilty plea or
imposing sentence, we see no plain error. See United States v. Garza, 751 F.3d
1130, 1134 (9th Cir. 2014). To be sure, some of the more concerning exchanges
showing McKee entrenched in his erroneous legal position occurred after the
district court deemed him competent and accepted his guilty plea. But as already
explained, the final psychological report addressed McKee’s legal position and
found it insufficient to render him clinically delusional. Defense counsel also did
not contend that McKee was incompetent at the sentencing hearing; rather, counsel
argued for a sentencing variance based on McKee’s mental health issues. See id. at
1137 (emphasizing that the defendant’s lawyer had dropped the competency
challenge). And the district court was in an ideal position to evaluate McKee’s
competency before sentencing. It discussed McKee’s legal theory with him at the
final presentencing hearing, and sentencing proceeded without issue. The district
court did not plainly err.
3. McKee’s challenge to the validity of his plea agreement is derivative
of his argument that he was not competent. Because McKee was competent to
plead guilty, we conclude that he voluntarily entered into his plea agreement, in
which he waived his right to appeal his sentence. See United States v. Lo, 839 F.3d

-- 3 of 4 --

4
777, 783 (9th Cir. 2016); see also United States v. Duncan, 643 F.3d 1242, 1248–
49 (9th Cir. 2011). We therefore do not consider his argument that the district court
erred in denying him a third-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1(b).
AFFIRMED in part and DISMISSED in part.

-- 4 of 4 --