UNITED STATES OF AMERICA v. LUIS ALBERTO RENDON ROMERO (2024)

ORDER

On November 24, 2021, the United States of America (“United States” or “government”) filed a criminal complaint against Luis Alberto Rendon-Romero (“Rendon-Romero” or “defendant”) for illegal reentry by an alien in violation of 8 U.S.C. § 1326(a), (b)(1) [D.E. 1]. On December 6, 2021, Rendon-Romero made his initial appearance before United States Magistrate Judge Brian S. Meyers, and the court temporarily detained Rendon-Romero [D.E. 4, 5]. On December 7, 2021, a grand jury indicted Rendon-Romero on one count of illegal reentry by an alien in violation of 8 U.S.C. § 1326(a), (b)(1) [D.E. 9].

On June 29, 2023, Rendon-Romero moved to dismiss the indictment for delays in Rendon-Romero's admission to competency restoration treatment [D.E. 54]. On July 13, 2023, the government responded in opposition [D.E. 55]. On July 19, 2023, Rendon-Romero replied [D.E. 56]. On July 28, 2023, the government informed the court that the Bureau of Prisons (“BOP”) admitted Rendon-Romero to the Medical Center for Federal Prisoners in Springfield, Missouri, on July 27, 2023 [D.E. 57]. See also [D.E. 70, 72]. On June 26, 2024, the court received Dr. Sarah Burton's latest forensic psychological report [D.E. 72]. Dr. Burton opined that Rendon-Romero is “incompetent to proceed at the present time and is unlikely to be restored to competency in the foreseeable future.” Id. at 1.

As explained below, the court denies Rendon-Romero's motion to dismiss the indictment and schedules a competency hearing for Rendon-Romero on July 10, 2024.

I.

On December 12, 2021, Rendon-Romero appeared before United States Magistrate Judge James E. Gates for his preliminary and detention hearings [D.E. 12]. Rendon-Romero moved to continue the hearings. See id. On December 14, 2021, Rendon-Romero waived his preliminary and detention hearings [D.E. 13]. On February 10, 2022, Magistrate Judge Robert T. Numbers, II found Rendon-Romero competent to proceed, and Rendon-Romero pleaded guilty without a written plea agreement [D.E. 16].

On May 9, 2022, Rendon-Romero moved for a competency evaluation and for a psychiatric or psychological evaluation under 18 U.S.C. § 4241(a), (b) [D.E. 23]. On May 17, 2022, the court granted the motion and ordered that the United States conduct a psychiatric or psychological examination of Rendon-Romero under 18 U.S.C. § 4247(b) [D.E. 24]. On June 10, 2022, Rendon-Romero arrived at the Metro Correctional Center in Chicago, Illinois, for evaluation. See [D.E. 25] 1.

On September 26, 2022, Dr. David Szyhowski submitted his forensic report with his diagnosis of Rendon-Romero, determined that Rendon-Romero was not competent to proceed, and recommended a course of treatment in a competency restoration program [D.E. 25]. On November 2, 2022, Rendon-Romero filed a consent motion for treatment to restore competency [D.E. 26]. On December 21, 2022, the court ordered Rendon-Romero committed to the custody of the Attorney General for treatment in a competency restoration program under 18 U.S.C. § 4241(d) [D.E. 27]. On January 19, 2023, the BOP designated Rendon-Romero to the Medical Center for Federal Prisoners in Springfield, Missouri, with a projected admission date of December 2023. See [D.E. 28] 3.

On February 1, 2023, Rendon-Romero moved for the court to require the Attorney General to determine competency within four months of the court's commitment order or to begin competency restoration treatment within three months of that order. See id. at 1. The same day, the court ordered the government to respond [D.E. 32]. On February 15, 2023, the government responded and informed the court about BOP's issue securing a hospital bed for Rendon-Romero [D.E. 33]. On February 27, 2023, the court ordered the Attorney General to admit Rendon-Romero for competency restoration treatment on or before June 26, 2023 [D.E. 37].

On March 7, 2023, Rendon-Romero moved to withdraw his guilty plea [D.E. 38]. On March 8, 2023, Rendon-Romero filed an interlocutory appeal of the court's February 27, 2023 order and argued that failing to set a date certain within four months of the court's December 2023 commitment order was a constructive denial of Rendon-Romero's motion to require the Attorney General to determine competency within four months of the court's December 21, 2022 commitment order or to begin competency restoration within three months of that order [D.E. 41]. On May 31, 2023, the Fourth Circuit affirmed this court's order [D.E. 48, 49]. See United States v. Rendon-Romero, No. 23-4164, 2023 WL 3734976, at *1 (4th Cir. May 31, 2023) (per curiam) (unpublished). On June 20, 2023, the government informed the court that the BOP would not be able to admit Rendon-Romero for competency restoration treatment by June 26, 2023 [D.E. 52] and submitted an affidavit from the BOP's Chief of Psychological Evaluations explaining why [D.E. 52-1].

On June 29, 2023, Rendon-Romero moved to dismiss the indictment [D.E. 54]. On July 13, 2023, the government responded in opposition [D.E. 55]. On July 19, 2023, Rendon-Romero replied [D.E. 56]. On July 28, 2023, the government informed the court that the BOP admitted Rendon-Romero to the Medical Center for Federal Prisoners in Springfield, Missouri, on July 27, 2023 [D.E. 57]. See also [D.E. 70, 72].

On September 18, 2023, the court held a hearing on Rendon-Romero's motions [D.E. 63]. At the hearing, the court denied Rendon-Romero's motion to withdraw his guilty plea, held open Rendon-Romero's motion to dismiss the indictment, and directed the parties to (1) submit any treatment notes to date and (2) update the court on the practical consequences for Rendon-Romero's treatment and custody status if the court dismissed the indictment or found Rendon-Romero not competent to proceed. See id.

On September 21, 2023, the government submitted Rendon-Romero's BOP health services clinical encounter documents [D.E. 64] and moved to seal those documents [D.E. 65]. The same day, the government informed the court that clinical evaluators could not yet determine the probability that Rendon-Romero would regain competency and that the government was communicating with Immigration and Customs Enforcement (“ICE”) to determine the practical consequences of Rendon-Romero's potential release [D.E. 66]. On November 27, 2023, the government informed the court that Rendon-Romero's competency restoration treatment team would soon ask the court for an extension of Rendon-Romero's competency restoration treatment period because there was a substantial possibility that Rendon-Romero may become competent with additional restoration treatment [D.E. 67]. On December 14, 2023, the Warden of Rendon-Romero's treatment facility submitted a forensic report from Dr. Sarah Burton and requested a 120-day extension of Rendon-Romero's commitment for competency restoration treatment under 18 U.S.C. § 4241(d)(2)(A) [D.E. 70, 70-1]. On January 10, 2024, the court granted that request and extended the period of Rendon-Romero's competency restoration treatment until May 8, 2024. See [D.E. 71].

On June 26, 2024, the court received Dr. Sarah Burton's latest forensic psychological report [D.E. 72]. Dr. Burton opined that Rendon-Romero “remains incompetent to proceed at the present time and is unlikely to be restored to competency in the foreseeable future.” Id. at 1.

II.

Rendon-Romero moves to dismiss the indictment for four reasons: (1) the Attorney General failed to comply with the court's order to commit Rendon-Romero for competency restoration no later than June 26, 2023, and belatedly informed the court that it would not admit Rendon-Romero until November 2023; (2) the BOP's failure to comply with the court's order and failure to timely notify the court of its anticipated noncompliance demonstrates inexcusable disregard for the court's order; (3) such inexcusable disregard warrants dismissal; and (4) dismissal will adequately punish the intentional noncompliance. See [D.E. 54]. Rendon-Romero also argues that the Attorney General's failure to determine competency within four months of the court's December 2022 commitment order violates 18 U.S.C. § 4241(d)(1) and due process under the Fifth Amendment of the United States Constitution. See id. at 6. Rendon-Romero argues that the alleged due process violation from his lengthy pre-hospitalization delay combined with the government's failure to comply with court orders warrants dismissing the indictment. See id. at 7. The government responds that the delay in placing Rendon-Romero was reasonable and that the extra one-month delay past the court's deadline of June 26, 2023, was not “the kind of flagrant misconduct warranting dismissal” of the indictment. [D.E. 55] 3–5 (quotation omitted). Rendon-Romero replies that dismissing the indictment is the least severe sanction to ensure compliance with the court's orders and remedy the alleged due process violation. See [D.E. 56] 3.

A.

Under 18 U.S.C. § 4241(d), if following a competency hearing “the court finds by a preponderance of the evidence that the defendant is presently 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, the court shall commit the defendant to the custody of the Attorney General.” 18 U.S.C. § 4241(d).

The Attorney General shall hospitalize the defendant for treatment in a suitable facility—

(1) for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward; and

(2) for an additional reasonable period of time until—

(A) his mental condition is so improved that trial may proceed, if the court finds that there is a substantial probability that within such additional period of time he will attain the capacity to permit the proceedings to go forward; or

(B) the pending charges against him are disposed of according to law; whichever is earlier.

Id. (emphasis added).

Congress included no provision to extend the four-month section 4241(d)(1) hospitalization, but section 4241(d)(2) allows for an additional reasonable period of hospitalization if the court finds a substantial probability of competency restoration. See, e.g., United States v. Magassouba, 544 F.3d 387, 405–06 (2d Cir. 2008). A “suitable facility” means “a facility that is suitable to provide care or treatment given the nature of the offense and the characteristics of the defendant.” 18 U.S.C. 4247(a)(2). The time periods of section 4241(d)(1) and (d)(2), however, “simply establish the maximum periods of hospitalized evaluation and treatment authorized for determining a defendant's competence to stand trial, not the maximum period that the defendant may be held in the custody of the Attorney General.” United States v. Curbow, 16 F.4th 92, 122 (4th Cir. 2021) (Traxler, J., concurring). Moreover, section 4241(d) “implicitly recognizes that hospitalization cannot occur instantaneously” and that a pre-hospitalization period before the four-month clock begins to run is permitted. United States v. Alhindi, 97 F.4th 814, 826 (11th Cir. 2024) (per curiam). Thus, section 4241(d)(1)'s four-month clock begins to run upon the hospitalization of the defendant at a suitable facility, not during any pre-hospitalization period. See id.; see, e.g., United States v. Donnelly, 41 F.4th 1102, 1106–07 (9th Cir. 2022) (per curiam).

In opposition to this conclusion, Rendon-Romero argues that section 4241(d)(1)'s four-month clock begins to run on the day the district court finds the defendant incompetent and commits the defendant. See [D.E. 54] 6. The court disagrees. See, e.g., Alhindi, 97 F.4th at 826; Donnelly, 41 F.4th at 1106-07. Only United States v. Carter, 583 F. Supp. 3d 94, 100–104 (D.D.C. 2022), supports Rendon-Romero's argument, but Carter directly contradicts section 4241(d)(1)'s text. See 18 U.S.C. § 4241(d)(1); Alhindi, 97 F.4th at 826; Donnelly, 41 F.4th at 1106–07; Magassouba, 544 F.3d at 405; see also Curbow, 16 F.4th at 122 (Traxler, J., concurring).

As for Rendon-Romero's argument that his period of pre-hospitalization delay violated his due process rights, “due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738 (1972); see United States v. Gamarra, 308 F. Supp. 3d 230, 233 (D.D.C. 2018). At the pre-hospitalization stage, “to abide by Jackson, the duration of the pre-hospitalization commitment period must be limited to the time reasonably required to” “allow the Attorney General time to identify a suitable facility and arrange for the defendant's transportation to that facility.” Donnelly, 41 F.4th at 1106; see Jackson, 406 U.S. at 738. Thus, although detentions must reasonably relate to the purpose of providing competency restoration services, the length of the pre-hospitalization period must remain reasonable. See Ind. Prot. & Advoc. Servs. Comm'n v. Ind. Fam. & Soc. Servs. Admin., 630 F. Supp. 3d 1022, 1032 (S.D. Ind. 2022), appeal dismissed, No. 22-2744, 2023 WL 2710284 (7th Cir. Mar. 2, 2023) (unpublished).

Rendon-Romero argues that the seven-month delay from December 21, 2022, to July 27, 2023, violated his due process rights. See [D.E. 54] 6–8. Having reviewed the entire record, including the BOP's rationale for the seven-month delay, the Fourth Circuit's affirmance of this court's decision to not order Rendon-Romero immediately admitted, and the one-month delay between the court's deadline and Rendon-Romero's admission to treatment, the court disagrees. See, e.g., Alhindi, 97 F.4th at 826 (holding that a three-month pre-hospitalization period did not violate due process); Rendon-Romero, 2023 WL 3734976, at *1 (upholding Rendon-Romero's projected six-month pre-hospitalization period); United States v. Castrellon, No. 22-CR-112, 2023 WL 2330688, at *3–4 (D. Colo. Mar. 1, 2023) (unpublished), report and recommendation adopted in part, No. 22-CR-112, 2023 WL 9957097 (D. Colo. May 12, 2023) (unpublished) (holding that an eight-month pre-hospitalization period did not violate due process); Ind. Fam. & Soc. Servs. Admin., 630 F. Supp. 3d at 1032 (holding that a due process claim challenging a wait time of 22 to 83 days for competency restoration was not likely to succeed on the merits); United States v. Blakney, No. 4:19-CR-862, 2021 WL 3375514, at *1 (D.S.C. Aug. 3, 2021) (unpublished) (holding that a 96-day pre-hospitalization period did not violate due process); cf. Donnelly, 41 F.4th at 1106–07 (holding that an eight-month pre-hospitalization period violated due process); United States v. Reeves, 690 F. Supp. 3d 531, 535–36 (W.D.N.C. 2023) (same for nine months); United States v. Calderon-Chavez, 688 F. Supp. 3d 472, 475, 488 (W.D. Tex. 2023) (same); United States v. Lara, 671 F. Supp. 3d 1257, 1264 (D.N.M. 2023) (same for eight-and-a-half months); Carter, 583 F. Supp. 3d at 100–04 (same for one year).

B.

Alternatively, even if Rendon-Romero's pre-hospitalization delay violated due process, the court rejects Rendon-Romero's argument that dismissing the indictment is the appropriate remedy. Courts facing this issue have “uniformly held that the remedy for such due process violations is not to dismiss the indictment as [Rendon-Romero] requests․ at least not right away.” Calderon-Chavez, 688 F. Supp. 3d at 488 (emphasis in original). Rather, courts have almost unanimously agreed that the first step is to order the government to admit the defendant by a specified date, and only if the government violates that deadline will courts consider the drastic remedy of dismissal. See id. at 488–89; United States v. Berard, 671 F. Supp. 3d 107, 117 (D.N.H. 2023) (collecting cases). Furthermore, courts that have dismissed indictments for violating deadline orders typically do so only when the date certain order found an ongoing violation of the defendant's due process rights. See, e.g., United States v. Lara, No. 1:21-CR-1930, 2023 WL 3316274, at *1–2 (D.N.M. May 5, 2023) (unpublished) (dismissing the indictment after the government violated an earlier order [Lara, 671 F. Supp. 3d 1257] that “f[ound] that this wait time has violated Lara's constitutional rights”); United States v, Leusogi, No. 2:21-CR-32, 2022 WL 16855426, at *1–4 (D. Utah Nov. 10, 2022) (unpublished) (dismissing the indictment after the government violated an earlier order that found a due process violation and warned the government of dismissal if it violated one final deadline); see also Donnelly, 41 F.4th at 1107 (holding that if the government violates the court's order on remand, that failure “layered on top of the existing statutory violation” may warrant dismissal). These decisions demonstrate that the common remedy for due process violations in this context is hospitalization. See Berard, 671 F. Supp. 3d at 117–18. Rendon-Romero does not cite, and this court has not located, any case dismissing an indictment for a pre hospitalization delay “after the government has admitted the defendant to a suitable facility.” Id. at 118 (emphasis in original).

This court's December 21, 2022 commitment order did not set a date certain for Rendon-Romero's admission. See [D.E. 27]. Therefore, in January 2023, when the BOP designated Rendon-Romero to the Medical Center for Federal Prisoners in Springfield, Missouri, with a projected admission date of December 2023, the government was not yet in violation of any court order but only anticipated a future inability to meet statutory requirements. This court's February 27, 2023 order granted Rendon-Romero's motion for the court to set a date certain for admission, but that order did not find a due process violation or tell the United States that the court would dismiss the indictment if the government failed to meet the court's deadline. See [D.E. 37]. The Fourth Circuit affirmed this court's decision to not order Rendon-Romero's immediate admission, further indicating that no due process violation had yet occurred. See [D.E. 48] 2; Rendon-Romero, 2023 WL 3734976, at * 1. On June 20, 2023, the government informed the court that the BOP could not meet the court's June 26, 2023 deadline. See [D.E. 52, 52-1]. On July 27, 2023, the BOP admitted Rendon-Romero to the competency restoration treatment facility. See [D.E. 57, 70, 72].

The dispute turns on whether the one-month delay for admission between June 26, 2023, and July 27, 2023, warrants dismissing the indictment. In light of the entire record and governing law, this court holds that it does not.

Although the government violated the court's order as of June 26, 2023, the extra 31 days the BOP took to admit Rendon-Romero roughly corresponds to a common final deadline set by courts when issuing a final warning to the government. See, e.g., United States v. Raja, No. 1:21-CR-368, 2023 WL 3497234, at *5 (S.D. Ind. May 17, 2023) (unpublished); United States v. Wazny, No. 3:21-CR-247, 2022 WL 17363048, at *7 (M.D. Pa. Dec. 1, 2022) (unpublished). Moreover, no order from this court found an ongoing due process violation before the government failed to meet the June 26, 2023 deadline. Accordingly, if the court had made such a finding immediately after the June 26, 2023 deadline passed, the first remedy would have been a final deadline for the government to admit Rendon-Romero, which the government did on July 27, 2023. Rendon-Romero received the appropriate remedy in this case.

C.

Finally, the court rejects Rendon-Romero's argument that the government's violation of this court's June 26, 2023 deadline alone warrants dismissing the indictment under Hastings. See United States v. Hastings, 126 F.3d 310 (4th Cir. 1997); cf. [D.E. 54] 9. “When a court sanctions the government in a criminal case for its failure to obey court orders, it must use the least severe sanction which will adequately punish the government and secure future compliance.” Hastings, 126 F.3d at 317. “In determining a suitable and effective sanction, a court must weigh the reasons for the government's delay and whether it acted intentionally or in bad faith; the degree of prejudice, if any, suffered by the defendant; and whether any less severe sanction will remedy the prejudice and the wrongdoing of the government” Id.

The BOP's delay in placing Rendon-Romero arose from the practical realities facing the BOP's competency restoration programs and Rendon-Romero's gang affiliations, which limited the scope of suitable facilities for his placement. See [D.E. 52-1] ¶¶ 4, 17–22. Moreover, assuming without deciding that Rendon-Romero suffered prejudice from the delayed pre-hospitalization custody period, Rendon-Romero has been receiving the competency restoration treatment he needed since July 27, 2023. As for the least severe sanction to remedy the prejudice and avoid wrongdoing, any alleged due process violation ceased once the government placed Rendon-Romero in competency restoration treatment in July 2023. Accordingly, the court denies Rendon-Romero's motion to dismiss the indictment.

D.

In light of Dr. Burton's latest forensic psychological report, the court will hold a hearing concerning Rendon-Romero's competency to proceed on July 10, 2024, in courtroom one of the Terry Sanford Federal Building, 310 New Bern Avenue, Raleigh, North Carolina. The parties shall inform the court if additional time is necessary for counsel to prepare or to secure the availability of witnesses for Rendon-Romero's competency hearing.

III.

In sum, the court GRANTS the government's motion to seal [D.E. 65] and DENIES defendant's motion to dismiss the indictment [D.E. 54]. The court will hold a competency hearing on July 10, 2024, at 1:00 p.m. to determine Rendon-Romero's competency to proceed with sentencing.

SO ORDERED. This 1 day of July, 2024.

JAMES C. DEVER III United States District Judge