United States v. Cristian Cabrera-Rivas (142 F.4th 199, 2025)

USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 1 of 55 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 22-4331 UNITED STATES OF AMERICA, Plaintiff − Appellee, v. CRISTIAN CABRERA-RIVAS, a/k/a Christian Cabrera-Rivas, a/k/a Christian Alberto Lopez, Defendant – Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge; David C. Keesler, Magistrate Judge. (3:19−cr−00235−RJC−DCK−2) Argued: October 29, 2024 Decided: June 30, 2025 Before DIAZ, Chief Judge, and WYNN and THACKER, Circuit Judges. Affirmed by published opinion. Chief Judge Diaz wrote the opinion, in which Judge Thacker joined in full, and Judge Wynn joined in part. Judge Wynn wrote an opinion concurring in part, dissenting in part, and dissenting from the judgment.

ARGUED: James Walter Kilbourne, Jr., ALLEN STAHL & KILBOURNE, PLLC, Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 2 of 55 DIAZ, Chief Judge: A jury found Cristian Cabrera-Rivas guilty of two drug offenses arising from a meth deal gone awry. Cabrera-Rivas urges us to vacate his conviction on various grounds, but none avail him. We affirm. I. Because the government prevailed before the district court, we recount the facts “in the light most favorable to the government.” United States v. Haas, 986 F.3d 467, 477 (4th Cir. 2021). A. Cabrera-Rivas grew up in Honduras. His formal schooling ended in third grade; he started working at age seven.

He likely has a learning disability, and he doesn’t speak fluent English. In the years before his arrest, Cabrera-Rivas lived and worked in Charlotte, North Carolina. By 2018, he had a side business peddling powder cocaine—and knew others who sold meth. That year, Cabrera-Rivas met a man who introduced himself as “Hector.” Hector was a confidential informant for the Department of Homeland Security. Hector’s handler at DHS was Agent Ubaldo Rios. In January 2019, Hector met Cabrera-Rivas again. Over the course of fourteen recorded phone calls, they negotiated a methamphetamine deal. In his first recorded call, Cabrera-Rivas claimed he knew a meth dealer—a “dude from Texas”—who would bring Hector whatever Hector wanted to buy. S.A. 1. Cabrera-Rivas proposed that Hector pay 2 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 3 of 55 $12,000 per kilogram of crystal meth, represented that price as “the deal” that he had, and offered to sell Hector five kilos.

S.A. 2, 4. Cabrera-Rivas called back half an hour later. His contact had said that five kilograms was “too many” and that his contact would arrive with two kilos to start. S.A. 6. Hector asked for a bulk discount. Cabrera-Rivas responded that Hector should buy the two kilograms first; Cabrera-Rivas, apparently, could “get the dude to come down on the price” “later.” S.A. 7. The next evening, Cabrera-Rivas told Hector that his “dude confirmed” the sale. S.A. 18. The morning of the deal, Cabrera-Rivas called to arrange his meeting with Hector. Cabrera-Rivas vouched for his contact, who’d “always been straight” with him, and he said his contact had “told [him] that if you’re straight with him like [Cabrera-Rivas was], he’ll work with you whenever you want.” S.A. 24. Hector and Agent Rios met Cabrera-Rivas in their chosen restaurant. Rios asked whether the product was good.

Cabrera-Rivas responded that Rios could “look at it now. And you will see that I haven’t touched it. Truth be told, I was just giving [my contact] a hand.” S.A. 27. Hector, Cabrera-Rivas, and Agent Rios walked outside, where they met the contact, Marco Ramos-Garcia. Ramos-Garcia was sitting in a minivan with his wife, Sylvia Hernandez, and their children. Rios greeted Ramos-Garcia and asked to see the product. Ramos-Garcia opened his driver-side door, and Hernandez passed a white garbage bag up to Rios. Inside the bag were two plastic Tupperware containers. Rios popped one open to examine the meth inside. 3 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 4 of 55 After approving of the crystal meth, Agent Rios asked Ramos-Garcia how to order more. Ramos-Garcia responded that “[h]owever you want to order, you just let me know with the guy and that’s it.” S.A. 41.

Rios pulled Cabrera-Rivas aside to fetch the money for the deal and asked Cabrera-Rivas how often their deals could take place. Cabrera-Rivas answered that “we will” provide some “every 15 days or every week. . . . If you want, I’ll send this guy right now.” S.A. 42. Just then, the police arrived. They ordered Cabrera-Rivas to “get on the ground,” but Cabrera-Rivas took off “running toward the restaurant,” where police apprehended him. J.A. 302. The police seized $3,359 in cash from Cabrera-Rivas and took custody of the two plastic tubs, which contained nearly pure meth. Later that day, Cabrera-Rivas was interviewed by police officer Michael Vargas. Although the interview was recorded, it was automatically erased after seven days without being “burned onto a CD in time.” J.A. 342. Officer Vargas later recalled that Cabrera- Rivas said he’d met Hector about a week before.

As Vargas remembered things, Cabrera- Rivas said Hector had asked him how to buy some meth, and Cabrera-Rivas responded that “he knew someone that could” provide some. J.A. 348. In that interview, Cabrera-Rivas called himself “a facilitator for the deal.” J.A. 348. B. Cabrera-Rivas was indicted on one count of conspiring to possess and distribute over fifty grams of methamphetamine and one count of possessing over fifty grams of methamphetamine with intent to distribute. See 21 U.S.C. §§ 841, 846. Soon after, Cabrera-Rivas gave notice of his intent to present a public authority defense. He also 4 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 5 of 55 requested (and received) a hearing on his competency to stand trial. See 18 U.S.C. § 4241(a). Government psychologist Ashley Jenkins evaluated Cabrera-Rivas and concluded that he was competent.

Cabrera-Rivas hired his own forensic psychologist, Sean Knuth. Knuth didn’t evaluate Cabrera-Rivas, and he expressed no views on Cabrera-Rivas’s competency. Knuth’s opinion instead focused on purported flaws in Jenkins’s report. To bolster his case for incompetency, Cabrera-Rivas filed a declaration from his wife, Victoria Rivera. There, Rivera said that Cabrera-Rivas “exhibited irrational and violent behavior” throughout their four-year marriage. J.A. 48. In her view, Cabrera-Rivas was quick to anger and eager to fight, and he couldn’t process “day-to-day and social interactions in a normal or healthy way.” J.A. 49. A magistrate judge presided over the competency hearing. Cabrera-Rivas’s counsel took the stand first. Counsel described Cabrera-Rivas’s behavior as “pretty erratic” and “very agitated.” J.A. 62–63. He would “get very upset,” she said, whenever his lawyers tried to explain legal concepts, and once “he got very agitated and got up and began to pace the room and pace around behind us,” making counsel and her colleague “very uncomfortable.” J.A. 63.

Counsel struggled to communicate with Cabrera-Rivas, and she thought that he didn’t understand basic legal concepts. A paralegal confirmed Cabrera- Rivas’s anger issues. Jenkins took the stand and drew a different picture. She’d met with Cabrera-Rivas five times for a total of ten hours. She described him as “cooperative” and noted no behavior issues. J.A. 89. Jenkins explained that Cabrera-Rivas performed very poorly on 5 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 6 of 55 a standardized test of intelligence that she’d administered. In her view, Cabrera-Rivas probably scored low because of his mere three years of formal education in Honduras. Jenkins administered a second test, one that would assess Cabrera-Rivas’s “personality and . . . psychological function or dysfunction.” J.A. 94. But the results of that test were unhelpful: Cabrera-Rivas’s atypical answers resulted in “highly elevated” scores that could not be sensibly interpreted.

J.A. 95. His scores were so high that they raised “a question of possibly malingering,” although Jenkins doubted Cabrera-Rivas was faking the results. J.A. 95. Ultimately, Jenkins found that Cabrera-Rivas “understood what he was charged with”—in “his own words, . . . he was charged with helping to do a drug sale.” J.A. 100–01. He told her that he was “having some difficulties communicating with his attorney and suggested that might be why he was sent for the evaluation.” J.A. 99. As Jenkins saw it, Cabrera-Rivas understood legal concepts when she explained them “in a simplified fashion.” J.A. 102. But he felt “rushed” by his translator and lawyers, and he was “very frustrated and upset” at his situation. J.A. 135. Cabrera-Rivas, Jenkins said, knew that he was a defendant; that the prosecutor wanted to put him “in jail”; and that a trial involved attorneys, judges, and juries.

J.A. 104–05. When Jenkins discussed deportation with Cabrera-Rivas, he wept and “talked about his regret.” J.A. 136. The magistrate judge found Jenkins’s testimony credible. He credited Knuth’s testimony, too—including Knuth’s admission that Jenkins’s report “provide[d] a basis for a competency opinion.” J.A. 737. The judge concluded that Cabrera-Rivas hadn’t shown he was incompetent by a preponderance of the evidence. 6 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 7 of 55 Cabrera-Rivas didn’t object to the magistrate judge’s decision, and he never asked the district judge to review it. C. Cabrera-Rivas proceeded to trial. There, Officer Vargas testified about his interview with Cabrera-Rivas. Vargas admitted that even though the interview was taped, the recording wasn’t downloaded from the server in time to avoid being automatically erased.

Defense counsel complained that possibly exculpatory evidence had been destroyed and asked that Vargas’s testimony be suppressed. After a sidebar, the district court said that it had heard no “evidence of bad faith” and admitted Vargas’s testimony. J.A. 343–44. Cabrera-Rivas moved for a judgment of acquittal at the close of the government’s case in chief, which the district court denied. It found that sufficient evidence supported the conspiracy charge—the evidence that Cabrera-Rivas and Ramos-Garcia had worked together to sell meth. And it found sufficient evidence on the possession charge because, it said, Cabrera-Rivas acted jointly with Ramos-Garcia and thus Cabrera-Rivas constructively possessed the drugs that Ramos-Garcia distributed. The district court then precluded Cabrera-Rivas from offering “public authority” and “innocent intent” affirmative defenses,1 but it did permit him to testify that he’d been entrapped.

J.A. 368–69. The prosecution asked the district court to instruct the jury on the 1 We discuss these defenses in more detail later. 7 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 8 of 55 defense of “classic entrapment” rather than “entrapment by estoppel,” and Cabrera-Rivas’s counsel agreed that his defense “certainly [would] be classic entrapment.”2 J.A. 370–72. Cabrera-Rivas took the stand. He told the jury that he knew that Hector was an informant, and that Hector had told him that “in six months if I could get, you know, drugs for the boss [Agent] Rios, that he could get me basically a permit” that would grant Cabrera-Rivas legal immigration status. J.A. 384. In his own words, he “was doing everything for [the] papers.” J.A. 398. The jury convicted Cabrera-Rivas on both counts. D. After trial, Cabrera-Rivas renewed his motion for a judgment of acquittal and, in the alternative, asked for a new trial.

He argued that the evidence didn’t suffice to convict him on both counts of the indictment, and that he’d been entrapped. And he argued (as relevant here) that the government’s destruction of the Vargas recording warranted a new trial. Cabrera-Rivas also moved for a retrospective competency hearing, asserting that his behavior at trial showed he was “unable to comprehend the proceedings.” J.A. 551. 2 The “classic” entrapment defense would require Cabrera-Rivas to show that the government induced him to commit his crimes, after which the government would have to prove beyond a reasonable doubt that Cabrera-Rivas was predisposed to criminality. United States v. Young, 916 F.3d 368, 375–76 (4th Cir. 2019). Entrapment by estoppel, on the other hand, is more closely related to the public authority defense than it is to ordinary entrapment. United States v.

Li, 475 F. Supp. 2d 590, 592 n.4 (E.D. Va. 2007). Proving entrapment by estoppel would require Cabrera- Rivas to show (1) that the government assured him “that certain conduct is lawful”; (2) that Cabrera-Rivas engaged in that conduct “in reasonable reliance on those assurances”; (3) and that the government prosecuted him for what it had said was allowed. United States v. Marshall, 332 F.3d 254, 262 (4th Cir. 2003). 8 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 9 of 55 The district court denied relief. First, the district court noted, based on its personal observations, that Cabrera- Rivas’s answers on the stand were “cogent[],” that he “answered appropriately” when questioned, and that defense counsel reported no “lack of understanding or assistance” during jury selection. J.A. 631. The court denied a retrospective competency hearing.

Next, the court found that Cabrera-Rivas’s “statements in recorded telephone calls” allowed the jury to find that he’d “conspired with a drug supplier in Texas and [Ramos- Garcia] to distribute 2 kilograms of methamphetamine for $24,000, and that [Cabrera- Rivas] constructively possessed the methamphetamine with intent to distribute when he instructed [Ramos-Garcia] when and where to deliver the drugs.” United States v. Cabrera- Rivas, No. 3:19-cr-235, 2022 WL 68767, at *1 (W.D.N.C. Jan. 6, 2022). Finally, the district court denied a new trial for destruction of the Vargas tape because Cabrera-Rivas hadn’t shown “actual bad faith.” Id. at *2. This appeal followed. II. Cabrera-Rivas starts by challenging the district court’s competency decisions. He contends that the magistrate judge erred by finding him competent, and the district court erred by denying him a second competency hearing.

A. We start with the magistrate judge’s finding of competency, which we review for clear error. United States v. Roof, 10 F.4th 314, 341 n.8 (4th Cir. 2021). 9 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 10 of 55 1. The government contends that we have no jurisdiction to review the magistrate judge’s competency order because Cabrera-Rivas didn’t object to it. We disagree. The government’s cited authorities, Appellee’s Br. at 40, stand for the uncontroversial point that we lack jurisdiction over appeals directly from a magistrate judge’s order. See, e.g., United States v. Stamper, No. 17-4412, 2017 WL 11681314, at *1 (4th Cir. Dec. 12, 2017). Magistrate judge orders, after all, aren’t “final decisions of the district courts.” 28 U.S.C. § 1291. But Cabrera-Rivas appealed from his final judgment of conviction, see J.A. 692, and a notice of appeal that designates a final judgment “encompasses all orders that . . . merge into the designated judgment,” whether or not those orders can be independently appealed.

Fed. R. App. P. 3(c)(4). In truth, the government’s argument is that Cabrera-Rivas didn’t properly preserve the competency issue. Failure to preserve doesn’t affect our jurisdiction. Otherwise, plain- error review would be unlawful. Instead, we agree with the Sixth Circuit that courts “retain[] subject matter jurisdiction over [an] appeal regardless of the untimely filing or nonfiling of objections” to a magistrate judge’s decision.3 Kent v. Johnson, 821 F.2d 1220, 1222–23 (6th Cir. 1987) (citing Thomas v. Arn, 474 U.S. 140, 155 (1985)). We may review the magistrate judge’s order on the assumption that Cabrera-Rivas preserved his objection. 3 The Fifth and Eleventh Circuits hold that “if the district court had no opportunity to ‘effectively review the magistrate’s holding’ at the request of the wronged party, [appeals courts] lack jurisdiction to hear an appeal of the merits of that holding,” even when a party appeals from a final judgment.

United States v. Schultz, 565 F.3d 1353, 1359 (11th Cir. 2009) (quoting United States v. Renfro, 620 F.2d 497, 500 (5th Cir. 1980)). We find Kent’s rule more persuasive. 10 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 11 of 55 2. Cabrera-Rivas was competent to stand trial if he had a “sufficient present ability to consult with his lawyer with a sufficient degree of rational understanding and [had] a rational as well as a factual understanding of the proceedings against him.” Godinez v. Moran, 509 U.S. 389, 396 (1993) (cleaned up). This rule doesn’t mean Cabrera-Rivas had to work well with his lawyers. It means he had to have “the capacity to understand, the capacity to assist, and the capacity to communicate with his counsel.” Bell v. Evatt, 72 F.3d 421, 432 (4th Cir. 1995). “[N]either low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial.” Burket v.

Angelone, 208 F.3d 172, 192 (4th Cir. 2000). It wasn’t clear error to find, as the magistrate judge did, that Cabrera-Rivas had not proven incompetency. Cabrera-Rivas’s only affirmative evidence came from his attorneys and his wife. It is not clearly wrong to conclude that their testimony showed an angry and frustrated man, not an incapacitated one. Cabrera-Rivas criticizes Dr. Jenkins’s methods. But he forgets that the government wasn’t required to put on evidence of competency. It’s the defendant’s obligation to prove incompetency by a preponderance of the evidence. Roof, 10 F.4th at 341. Dr. Jenkins testified that Cabrera-Rivas understood what was happening; he just had trouble working with his lawyers. We have no reason to doubt the trial court’s finding that Jenkins testified credibly. And Cabrera-Rivas’s affirmative evidence—the testimony of his lawyers and his wife—didn’t contradict Jenkins’s conclusion, let alone refute it. 11 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 12 of 55 We’re thus not left with a “definite and firm conviction that a mistake has been committed,” as the clear error standard requires.

Cooper v. Harris, 581 U.S. 285, 309 (2017) (quotation omitted). B. Cabrera-Rivas attacks the magistrate judge’s competency ruling with another theory. He argues that the magistrate judge wasn’t authorized by Congress to finally decide his competency. The issue that Cabrera-Rivas raises is important, but it wasn’t preserved. Cabrera- Rivas didn’t question the magistrate judge’s authority in the district court or in his opening brief. That’s forfeiture, so we review for plain error and find none. 1. The Federal Rules of Criminal Procedure allow magistrate judges to participate in criminal cases in one of two ways. Magistrate judges may “determin[e]” by “oral or written order” “any matter that does not dispose of a charge or defense.” Fed. R. Crim. P. 59(a). A district judge may “modify or set aside” such an order only if it “is contrary to law or clearly erroneous.” Id.

Magistrate judges can also issue “a recommendation” on “a defendant’s motion to dismiss or quash an indictment or information, a motion to suppress evidence, or any matter that may dispose of a charge or defense.” Id. 59(b)(1). “The district judge must consider de novo any objection to the magistrate judge’s recommendation.” Id. 59(b)(3). The Federal Magistrates Act encodes a similar distinction. 28 U.S.C. § 636(b)(1). 12 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 13 of 55 Cabrera-Rivas argues that a magistrate judge’s competency ruling is effectively a ruling that resolves a dispositive matter before the court. As Cabrera-Rivas sees it, the magistrate judge should have filed a report and recommendation under Rule 59(b) instead of an order under Rule 59(a). That error, he complains, deprived him of “the review of an Article III judge.” Appellant’s Suppl.

Br. at 7. This argument is forfeited twice over. First, Rule 59 and the Federal Magistrates Act require parties to object to a magistrate judge’s order within fourteen days, whether the magistrate judge issued an order or a report and recommendation. Fed. R. Crim. P. 59(a), (b)(2); 28 U.S.C. § 636(b)(1). Failure to do so means the objection is forfeited. United States v. Benton, 523 F.3d 424, 428 (4th Cir. 2008); United States v. Midgette, 478 F.3d 616, 621 (4th Cir. 2007). Cabrera- Rivas never objected to the magistrate judge’s order—not to challenge the magistrate judge’s findings, and certainly not to challenge the magistrate judge’s authority. Second, Cabrera-Rivas never said anything about the magistrate judge’s authority in his merits briefs. He didn’t challenge it in his opening brief; there, he focused on the magistrate judge’s substantive findings.

And he didn’t bring it up in his reply brief, either; there, he argued that competency cannot be waived. We have a word for that situation: forfeiture. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017); United States v. Smith, No. 23-4242, 2025 WL 227717, at *6 (Jan. 17, 2025). So we review for plain error. United States v. Caldwell, 7 F.4th 191, 211 (4th Cir. 2021). 13 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 14 of 55 2. To get around plain error, Cabrera-Rivas presses (and our dissenting colleague agrees) that competency questions can’t be waived or forfeited. In his view, if a defendant lacks competency to be tried, then that defendant is incompetent to object to a finding of his own competency. Reply Br. at 5. To that end, Cabrera-Rivas insists that “conviction of an accused person while he is legally incompetent violates due process,” full stop.

Id. (quoting Pate v. Robinson, 383 U.S. 375, 378 (1966)). That means, he says, that he can object to the magistrate judge’s powers whenever he likes. Cabrera-Rivas’s premise is true, so far as it goes. Courts have a duty to monitor competency, and they can’t shirk it because a defendant failed to object to his own mental fitness. As the Supreme Court explained in Pate, a stricter procedure wouldn’t protect an incompetent defendant’s right to due process of law. 383 U.S. at 378. “[I]t is contradictory,” the Pate court said, “to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial.” Id. at 384. That isn’t at all what happened here. Cabrera-Rivas didn’t forfeit his right to a competency hearing. He asked for such a hearing, and the magistrate judge gave him one.

What he forfeited instead was his right to challenge the magistrate judge’s powers.4 4 The dissent asks how an incompetent defendant could knowingly “forfeit his right to Article III adjudication of his competency.” Infra at 37 (opinion of Wynn, J.). That proves too much. On the dissent’s rule, no argument could be forfeited once competency came into question. 14 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 15 of 55 The dissent accuses us of holding that “forfeiture applies to a claim about competency on direct appeal.” Infra at 32, 54 (opinion of Wynn, J.). Not so. Because we affirm the magistrate judge’s competency decision on the merits, we see no need to decide whether the Due Process clause permits plain-error review of competency rulings. The scope of the Federal Magistrates Act is, at best, tangentially related to the merits of the competency order the magistrate judge entered. 3.

Now we apply the plain-error standard. We will reverse on unpreserved grounds only if we find (1) an error (2) which is plain and (3) which affects substantial rights. Greer v. United States, 593 U.S. 503, 507 (2021). Even then, we will grant relief only if (4) “the error had a serious effect on the fairness, integrity or public reputation of judicial proceedings.” Id. at 508 (cleaned up). We rest on “substantial rights.”5 To meet that third prong of the plain-error test, “there must be a reasonable probability that, but for the error, the outcome of the proceeding Consider Part V.D. of our opinion, where we hold that Cabrera-Rivas waived the affirmative defense of entrapment by estoppel. On our colleague’s rule, that waiver should have been impossible—how could an incompetent defendant knowingly give up a defense? Yet our colleague joins Part V.D. 5 Though the “substantial rights” prong alone defeats plain error, we also doubt that the fairness or integrity of the federal courts would suffer in the eyes of the public were we to find otherwise.

The magistrate judge’s decision here served justice—so much so that the dissent can’t bear to attack its reasoning directly. The dissent submits that this prong is “unnecessary,” since considering it would “‘incorrectly suggest that some action (or inaction)’” by the defendant could create authority that a decision-maker lacks. See infra at 41 (quoting Nguyen v. United States, 539 U.S. 69, 80 (2003)). The very next sentence of Nguyen explains why that’s wrong. In 15 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 16 of 55 would have been different.” Id. at 507–08 (cleaned up). Here, there is none, and Cabrera- Rivas (who “bears the burden of persuasion”) points to nothing to persuade us otherwise. United States v. Olano, 507 U.S. 725, 734 (1993). Had the magistrate judge proceeded by report and recommendation instead of by order, the result would be just the same— Cabrera-Rivas would fail to object, and the district court wouldn’t review the report.6 The dissent evades this problem by supposing that there’s been no “valid” finding that Cabrera-Rivas is competent to stand trial.

Infra at 32, 37, 53. But that ignores the Supreme Court’s instruction, in case after case, that we ask what would have happened “but for the error.” Greer, 593 U.S. at 508; Rosales-Mireles v. United States, 585 U.S. 129, 134 (2018); Olano, 507 U.S. at 734. The dissent’s contrary position distorts what happened in the district court. As our colleague sees it, the magistrate judge’s order was “ultra vires,” “void,” a nullity. See, e.g., infra at 39, 42, 49. But the magistrate judge held a hearing, considered the evidence, and Nguyen, the parties couldn’t opt in to a wrongly constituted appellate panel even by “express[] stipulat[ion].” 539 U.S. at 80. But magistrate judges are “critically” different: parties can empower them by consent. Peretz v. United States, 501 U.S. 923, 932 (1990). Nguyen’s premise doesn’t apply here, so neither does Nguyen’s conclusion. 6 Our dissenting colleague muses that Cabrera-Rivas’s counsel might have chosen to object had he known that the magistrate judge’s order would be reviewed de novo rather than for clear error.

Infra at 39–40. But Cabrera-Rivas’s own briefs undermine that contention. The magistrate judge’s order issued on a Thursday, and Cabrera-Rivas’s trial began the next Monday—too soon, his counsel says, for an objection to be possible. Reply Br. at 4. Counsel, it seems, made a strategic choice to spend the weekend preparing for trial. And it’s sheer speculation to say that a different standard of review would have altered that calculus. Substantial-rights analysis should turn on “record evidence,” not guesswork. United States v. Dominguez Benitez, 542 U.S. 74, 83–84 (2004). 16 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 17 of 55 issued a decision. Cabrera-Rivas had a day in court, no matter how firmly our colleague insists he did not. We’re not deciding competency “in the first instance.” Id. at 32. If Cabrera-Rivas wanted review by an Article III judge, all he had to do was ask.

Because he didn’t, the magistrate judge’s choice to proceed by order rather than recommendation changed nothing. The plain-error test isn’t met, and Cabrera-Rivas’s challenge to the magistrate judge’s powers fails. C. 1. Finally, we address Cabrera-Rivas’s claim that the district court erred by denying him a post-trial competency hearing. A court must order such a hearing if it finds “reasonable cause to believe” that a defendant presently lacks competency to stand trial. 18 U.S.C. § 4241(a). We review such a “procedural competency” decision for abuse of discretion. United States v. Banks, 482 F.3d 733, 742 (4th Cir. 2007). The “hallmark of abuse-of-discretion review” is “deference.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997); see United States v. Smith, 21 F.4th 122, 138 (4th Cir. 2021). If the district court “applied the correct legal standard and offered substantial justification for its finding” without making “a clearly erroneous assessment of the evidence,” it abused nothing, and we must affirm.

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (internal quotation omitted); see Pierce v. N.C. State Bd. of Elecs., 97 F.4th 194, 210 (4th Cir. 2024). Cabrera-Rivas claims that his trial testimony was rambling and at times non- responsive. He faults the district court for “appl[ying] its judgment to personal 17 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 18 of 55 observations made at trial” and insists that the district court must not have (but should have) decided that Cabrera-Rivas would “remain competent . . . through sentencing.” Appellant’s Br. at 30. We reject these contentions. Cabrera-Rivas argued to the district court that his conduct during trial cast doubt on his competency, so it was only proper for the district court to respond by focusing on that conduct. The court found that although Cabrera-Rivas didn’t always give direct answers during his testimony, nothing suggested that he couldn’t understand what was happening around him.

There was no clear error in that factual conclusion, nor was there anything “arbitrary” or “capricious” in the district court’s “exercise of discretion” to deny a second competency hearing. Banks, 482 F.3d at 743 (quotation omitted). 2. Our dissenting colleague believes otherwise. See infra at 43. We share considerable common ground with the dissent’s view of the law. All three of us agree, for instance, that when a defendant asks for a second competency hearing based on new evidence, it’s the new evidence that must call competency into question. Id. at 50. We agree that the new evidence ought to be considered holistically, “aggregate[d]” with whatever came before. Id. And we agree that district courts should consider “the record as a whole” and “accept as true all evidence of possible incompetence.” United States v. Mason, 52 F.3d 1286, 1290 (4th Cir. 1995) (quotation omitted).

Our disagreement is not on the governing standard but on its application to this case. The dissent identifies no legal rule that the district court misstated, and no clearly erroneous 18 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 19 of 55 facts that the district court relied on (or failed to take as true). The dissent simply would have weighed the facts differently. Our colleague suggests that the district court misapplied the law by relying on the magistrate judge’s competency finding. See infra at 49. But how was the district court to know it couldn’t do so? Cabrera-Rivas never argued to the district court that the magistrate judge’s order was invalid. He never even objected to the merits of the magistrate judge’s findings. We decline to transform lack of clairvoyance into abuse of discretion. Perhaps we, like the dissent, would have ordered a retrospective competency hearing were we in the district court’s shoes.

But we weren’t at the trial. We didn’t hear Cabrera-Rivas’s testimony. We had no chance to see him in the flesh. In situations like this, the standard of review tells us how to proceed: with deference. III. Cabrera-Rivas next argues that the government’s evidence was insufficient to convict him. We won’t overturn a jury verdict so long as, viewing the evidence in the light most friendly to the government, the verdict is grounded by substantial evidence. Haas, 986 F.3d at 477. That’s a purely legal question, and we must find the evidence substantial if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Musacchio v. United States, 577 U.S. 237, 243 (2016) (cleaned up). 19 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 20 of 55 A. We begin with Cabrera-Rivas’s conspiracy charge. To prove that offense, the government had to show “(1) an agreement to possess [drugs] with intent to distribute existed between two or more persons; (2) the defendant knew of the conspiracy; and (3) the defendant knowingly and voluntarily became a part of this conspiracy.” United States v.

Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc). Cabrera-Rivas argues that the government couldn’t prove that he joined in a conspiracy because his “uncontroverted testimony” was that he thought he was collaborating with the government. Appellant’s Br. at 35. According to Cabrera-Rivas, he didn’t act “in furtherance of the conspiracy to sell drugs, but rather in furtherance of the Government’s scheme to arrest drug dealers.” Id. at 36. The problem with this argument is that Cabrera-Rivas offered no evidence of his intent other than his own words. And juries don’t have to believe testimony from self- interested defendants; instead, they can infer intent from circumstantial evidence. See United States v. Tillmon, 954 F.3d 628, 640–41 (4th Cir. 2019). Cabrera-Rivas also argues that he can’t be convicted for conspiring “only with a government agent.” Appellant’s Br. at 33.

That’s true enough, but there was more than enough evidence that Cabrera-Rivas conspired with Ramos-Garcia. How else could Cabrera-Rivas have set up the deal? The jury could reasonably have discredited Cabrera-Rivas’s self-serving testimony and judged Cabrera-Rivas by his words and actions during the drug deal. And relying on that evidence, the jury could have found beyond a reasonable doubt that Cabrera-Rivas 20 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 21 of 55 intended to source meth for Hector and Rios and formed an agreement with Ramos-Garcia to that end. That’s enough to affirm Cabrera-Rivas’s conspiracy conviction. B. Cabrera-Rivas’s possession charge presents a harder question. He argues that he didn’t possess any methamphetamine—he never touched Ramos-Garcia’s meth, never exercised control of it, and never knew much about the meth trade.

The government responds that there’s sufficient evidence to find that Cabrera-Rivas constructively possessed the meth that Ramos-Garcia brought to sell to Rios and Hector. Ultimately, we agree with the government. People often don’t have literal, physical possession of all the things they own or control at any given time. Thus, we’ve long interpreted possession statutes to criminalize both actual, caught-red-handed possession and constructive possession. See United States v. Moody, 2 F.4th 180, 189 (4th Cir. 2021) (drugs); Henderson v. United States, 575 U.S. 622, 626 (2015) (guns). In other words, we’ve said, a jury can infer that a defendant possessed contraband if the defendant had “ownership, dominion, or control over the contraband or the [place] in which [it] was concealed” together with knowledge of its presence. Moody, 2 F.4th at 189 (quoting United States v.

Herder, 594 F.3d 352, 358 (4th Cir. 2010)); see Henderson, 575 U.S. at 630. We’ve shied away from bright-line rules when we’ve considered what’s enough to prove possession. Mere proximity is not enough. See United States v. Blue, 957 F.2d 106, 108 (4th Cir. 1992). Neither is association with the illicit thing’s true owner. United States 21 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 22 of 55 v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984). Rather, because we’ve said that “the totality of the circumstances” matters, various facts can show that contraband belongs to the defendant. Herder, 594 F.3d at 358. We have considered when a jury can infer possession if a defendant acts with others to move a single mass of drugs together. Consider United States v. Laughman, 618 F.2d 1067 (4th Cir. 1980). In that case, police officers spotted a group of men on a sailboat that was “moving ‘very quietly’ and without running lights.” Id. at 1071.

Officers saw three rubber boats leaving the sailboat with “large mounds of indistinguishable cargo.” Id. The rubber boats docked, the cargo vanished, and “the engines of several trucks started up.” Id. When the police investigated, they found that the sailboat and two of the rubber boats contained “a large amount of what appeared to be marijuana residue.” Id. Inside the trucks themselves, the officers found more than two tons of marijuana. Id. On appeal, some defendants challenged their possession convictions. We acknowledged that the defendants, all party to one overarching scheme, “may not have had actual physical possession” of the marijuana “when they were apprehended.” Id. at 1077. But because “all of the [defendants] were engaged in a concerted effort to transport and distribute” the marijuana, “they each retained an interest in and dominion over” the entire hoard.

Id. Circumstantial evidence confirmed that all the defendants “shared in the [illegal] undertaking,” so we found sufficient evidence that each of them constructively possessed the marijuana. Id. 22 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 23 of 55 A Laughman-like inference of a joint venture undergirds other cases where possession by a drug dealer has been used to infer possession by the broker of the deal. The rule distilled from cases of that kind was aptly stated by the Second Circuit: [A] person who is sufficiently associated with the persons having physical custody so that he is able, without difficulty, to cause the drug to be produced for a customer can also be found by a jury to have dominion and control over the drug, and therefore possession. On the other hand, the casual facilitator who knows that a given principal peddles narcotics, but who does not have a working relationship with that principal which would enable him to assure delivery, lacks dominion and control and does not have possession.7 United States v.

Hernandez, 290 F.2d 86, 90 (2d Cir. 1961) (citations omitted). We think there was enough evidence here to show that Cabrera-Rivas constructively possessed the meth that Ramos-Garcia tried to sell. Cabrera-Rivas arranged for delivery of the meth; he guaranteed its price; he promised Hector that he could arrange delivery of more; he told Hector that “we sent that other dude to Texas to pick up what you ordered”; and he said to Rios that he could “send” Ramos-Garcia to pick up more meth “right now.” This evidence could persuade a reasonable jury that Cabrera-Rivas had some control over Ramos-Garcia’s actions. At the very least, a jury could conclude beyond a reasonable doubt that Cabrera-Rivas was “engaged in a concerted effort to transport and distribute” the two kilograms of meth, as we found in Laughman. 618 F.2d at 1077. A jury could also find that Cabrera-Rivas had a “working relationship” with Ramos-Garcia that “would 7 Hernandez, as well as the cases it cites, interpreted the Narcotic Drugs Import and Export Act’s ban on “possession of . . . narcotic drug[s].” 21 U.S.C. § 174 (1964); see Hernandez, 290 F.2d at 88.

The Controlled Substances Act repealed that ban and replaced it with what’s now 21 U.S.C. § 841. Pub. L. No. 91-513 § 1101(a)(2), 84 Stat. 1242, 1291 (1970); id. § 401, 84 Stat. at 1260–62. Cases interpreting the Narcotic Drugs Act therefore inform, but don’t control, our interpretation of the Controlled Substances Act. 23 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 24 of 55 enable” Cabrera-Rivas “to assure delivery,” as the Second Circuit explained would suffice in Hernandez. 290 F.2d at 90. Were Cabrera-Rivas nothing but an arm’s-length broker, we would hesitate to affirm. But that’s not this case. Because a jury could conclude beyond a reasonable doubt that Cabrera-Rivas was in on the deal, we find there was sufficient evidence to support his conspiracy conviction. IV. Cabrera-Rivas next contends that the district court should have ordered a new trial because the government violated his due process rights by destroying his taped interview with Officer Vargas.

We review the district court’s refusal to grant a new trial for abuse of discretion, but because it’s an abuse of discretion to commit a legal error, “we apply de novo review to [the district court’s] legal determinations and clear error review to its factual findings.” United States v. Wolf, 860 F.3d 175, 189 (4th Cir. 2017). In support of his due process argument, Cabrera-Rivas directs our attention to Arizona v. Youngblood, 488 U.S. 51 (1988). As that case recounted, the state deprives defendants of due process when it “fails to disclose . . . material exculpatory evidence.” 488 U.S. at 57 (discussing Brady v. Maryland, 373 U.S. 83 (1963)). But “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58 (emphasis added). 24 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 25 of 55 Cabrera-Rivas focuses on the government’s failure to preserve a recording of his interview with Vargas.

Because he admits he doesn’t know whether that recording would be exculpatory, Youngblood applies. Youngblood requires evidence of bad faith, and Cabrera-Rivas offered none at trial. True, Vargas admitted that audio recordings from witness interviews are “typically” preserved. J.A. 354. And Vargas knew it was important to preserve them. Id. But that shows negligence, at worst. That ends Cabrera-Rivas’s Youngblood challenge. Cabrera-Rivas next focuses on the timeliness of the government’s disclosure. The government didn’t tell defense counsel until the middle of trial that a tape of the Vargas interview existed but was destroyed. In Cabrera-Rivas’s view, this late disclosure warrants a new trial: Timely disclosure would have allowed Cabrera-Rivas to “subpoena[] those responsible for destroying the evidence,” “investigate[] the misconduct before trial,” and then “use[] that evidence to impeach the government’s witnesses” or attack their credibility.

Appellant’s Br. at 43–44. In support, Cabrera-Rivas cites our decision in United States v. Smith Grading & Paving, Inc., where we said that “[n]o due process violation occurs as long as Brady material is disclosed to a defendant in time for its effective use at trial.” 760 F.2d 527, 532 (4th Cir. 1985). But in Smith Grading, as here, allegedly exculpatory evidence came out mid-trial on cross-examination. That mid-trial disclosure didn’t come too late: “The information was available for use in the defendant’s cross-examination of all further government witnesses as well as in the defendants’ case in chief.” Id. We held that the information was handed over soon enough to prevent any deprivation of due process. Id. 25 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 26 of 55 The Vargas tape wasn’t Brady evidence. But even if it were, Cabrera-Rivas still learned of its destruction in time to exploit that fact during the trial.

Vargas explained that the tape was erased on direct examination, defense counsel cross-examined him on the issue, and counsel stressed that fact in his closing argument. The district court didn’t abuse its discretion by denying a new trial. V. Finally, Cabrera-Rivas argues that the district court should have instructed the jury on several affirmative defenses. A defendant is entitled to such an instruction if “there exists evidence sufficient for a reasonable jury to find in his favor” on the defense. United States v. Ricks, 573 F.3d 198, 200 (4th Cir. 2009) (quotation omitted). We review the district court’s refusal to give an affirmative defense instruction de novo. Id. Cabrera-Rivas argues for four defenses: public authority, innocent intent, outrageous conduct, and entrapment by estoppel. Each argument fails. A. First, the public authority defense, which “allows a defendant to seek exoneration based upon his objectively reasonable reliance on the authority of a government official.” United States v.

Fulcher, 250 F.3d 244, 253 (4th Cir. 2001) (emphasis removed). Cabrera-Rivas claims that Hector told him that Cabrera-Rivas could and should conduct a drug deal to help federal agents. But he concedes that Hector lacked actual authority to engage Cabrera-Rivas in a sting. Agent Rios had authority, but he never 26 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 27 of 55 granted it to Hector or Cabrera-Rivas. The public authority defense requires authorization from an officer with actual authority. Id. This missing element dooms Cabrera-Rivas. Cabrera-Rivas, undeterred, says that Rios’s “presence” convinced him that “‘Hector’s’ exercise of apparent authority had been ratified by Special Agent Rios’[s] actual authority.” Appellant’s Br. at 57. But the elements of the public authority defense don’t leave any room for that kind of argument.

Cabrera-Rivas admits as much when he contends that he “only committed a mistake of fact—a cognizable defense negating intent when the mens rea requirement for a crime is at least knowledge.” Id. at 58. That concession is fatal. Public authority is an affirmative defense; mens rea is an element of the government’s case in chief. The two are not the same. Fulcher, 250 F.3d at 252–53. B. Second, innocent intent. As we explained in United States v. Galecki, “innocent intent” is just another way of saying that there’s no mens rea. 932 F.3d 176, 189 (4th Cir. 2019). Only the Eleventh Circuit allows defendants to frame their innocent intent as an affirmative defense. Id. at 189–90; United States v. Alvarado, 808 F.3d 474, 486–87 (11th Cir. 2015). In Galecki, we cast doubt on our sister circuit’s path, but we didn’t decide “whether to permit an innocent intent defense in this Circuit.” Id.

Cabrera-Rivas seizes on that statement, asks us to “re-examine” our reasoning in Galecki, and urges us to join the Eleventh Circuit. Appellant’s Br. at 59. 27 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 28 of 55 But he offers no reason for us to do so. In fact, Cabrera-Rivas’s passing shot at this issue isn’t enough to present it for our review. See United States v. Miller, 41 F.4th 302, 313 (4th Cir. 2022); Hensley ex rel. North Carolina v. Price, 876 F.3d 573, 580 n.5 (4th Cir. 2017). We consider Cabrera-Rivas’s innocent-intent argument underdeveloped and thus unpreserved. C. Third, outrageous conduct. Cabrera-Rivas never asked the district court to instruct the jury on that defense, so we ask only whether it was plain error for the district court not to do so on its own. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993).

It wasn’t. We’ve recognized that, “in theory,” the constitutional guarantee of due process can be violated if “law enforcement conduct . . . [is] so outrageous as to violate fundamental notions of fairness.” United States v. Hasan, 718 F.3d 338, 342–43 (4th Cir. 2013). But when we say that we require outrageous conduct, we mean it. Our decisions consistently “demonstrate a high shock threshold in the presence of extremely unsavory government conduct.” United States v. Osborne, 935 F.2d 32, 36 (4th Cir. 1991). The government’s conduct “must be ‘shocking,’ or ‘offensive to traditional notions of fundamental fairness.’” Hasan, 718 F.3d at 343 (citation omitted). To support his argument, Cabrera-Rivas reminds us that he doesn’t speak English, that he has a “cognitive impairment,” and that Hector (in Cabrera-Rivas’s view) persuaded him to cooperate with the government and then betrayed him. 28 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 29 of 55 The first two facts have nothing to do with the government’s conduct.

And the third fact, Hector’s supposed double-switch, has no evidence to support it other than Cabrera- Rivas’s self-interested testimony—testimony that the jury disbelieved in any event. We need not decide whether Hector’s double-switch would violate any constitutional guarantee if it happened. A “highly circumscribed” defense that is available to defendants only “in theory,” Hasan, 718 F.3d at 343, can’t be “‘clear’ or ‘obvious’” given the “settled law of the Supreme Court or this circuit,” as the plain-error standard requires, United States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013) (quotation omitted). D. Finally, entrapment by estoppel. Cabrera-Rivas’s counsel expressly disclaimed any reliance on that defense at trial. That waiver bars our review. At the charge conference, the district court reminded Cabrera-Rivas that it had “disallowed the public authority affirmative defense[] and the innocent intent defense.” J.A. 368–69.

Cabrera-Rivas’s counsel accepted that ruling but asserted that “the entrapment defense [was] still on the table.” J.A. 369. In response, the government asked for a “point of clarification.” J.A. 370. The government “wasn’t sure” whether the district court would instruct the jury on “entrapment by estoppel.” J.A. 370. The government thought that the facts of Cabrera-Rivas’s case supported an instruction on only “classic entrapment”—inducement of one without any criminal disposition to perform an act “that all parties know at all times is illegal.” J.A. 371. Entrapment by estoppel, as the government explained, is “a very distinct affirmative defense,” J.A. 372, that’s “available when a government official tells the 29 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 30 of 55 defendant that certain activity is legal, the defendant commits the activity in reasonable reliance on that advice, and prosecution for the conduct would be unfair.” United States v.

Clark, 986 F.2d 65, 69 (4th Cir. 1993). Because the government didn’t think there was any evidence that Cabrera-Rivas thought “that selling this methamphetamine was legal,” it asked for some assurance that the district court wouldn’t instruct on entrapment by estoppel. Cabrera-Rivas’s counsel said that he “would agree that it certainly will be classic entrapment.” And the district court agreed to “instruct on that” defense. J.A. 371–72. Cabrera-Rivas identified the entrapment-by-estoppel issue and declined to press it. That is waiver, not just forfeiture. United States v. Council, 77 F.4th 240, 256 (4th Cir. 2023). And waived claims can’t be reviewed on appeal—de novo, for plain error, or in any other way. Id. * * * Cabrera-Rivas makes many arguments to vacate his conviction. We disagree with them all. The district court’s judgment stands.

AFFIRMED 30 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 31 of 55 WYNN, Circuit Judge, concurring in part, dissenting in part, and dissenting from the judgment: I join in the opinion except for Part II, where the majority overlooks well-established precedent from the Supreme Court and this Court to deny Cabrera-Rivas the remedy that the Constitution compels—review of his competency by an Article III judge. I must dissent. “The rule that a criminal defendant who is incompetent should not be required to stand trial has deep roots in our common-law heritage.” Medina v. California, 505 U.S. 437, 446 (1992). “Thus, Blackstone wrote that one who became ‘mad’ after the commission of an offense should not be arraigned for it ‘because he is not able to plead to it with that advice and caution that he ought.’ Similarly, if he became ‘mad’ after pleading, he should not be tried, ‘for how can he make his defense?’” Drope v.

Missouri, 420 U.S. 162, 171 (1975) (quoting 4 W. Blackstone, Commentaries on the Laws of England *24 (1769)). For that reason, the Supreme Court has observed “that the prohibition [against subjecting incompetent defendants to trial] is fundamental to an adversary system of justice.” Id. at 172. The majority sidelines this protection. It overlooks the distinctions in this Court’s jurisprudence between procedural and substantive competency claims, and as a result it does not account for the different presumptions contained therein. This Court bifurcates competency claims into two distinct categories: substantive claims, where “the movant asserts that he was, in fact, tried and convicted while mentally incompetent,” and procedural claims, where “the movant contends that the trial court failed to properly ensure that the accused was competent to stand trial.” United States v.

Basham, 31 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 32 of 55 789 F.3d 358, 379 (4th Cir. 2015). Cabrera-Rivas raises both types of claims. He also asserts a third theory: the magistrate judge lacked the statutory authority to enter a final order determining that he was competent to stand trial. The majority opinion first errs by assuming that, despite sixty years of clear statements from this Court and the Supreme Court, forfeiture applies to a claim about competency on direct appeal, so it need not decide whether a magistrate judge is permitted to issue a final order determining competency. Having resisted the inescapable conclusion that a magistrate judge may not do so, the majority rebuffs the procedural competency claim by declining to ascribe error to the district court for relying on this invalid order and four makeweight observations to conclude that there was an absence of “bona fide doubt” about Cabrera-Rivas’s competency to stand trial.

Finally, addressing the substantive competency claim, the majority discredits all of the evidence relating to Cabrera-Rivas’s incompetency and does not hesitate to, in the first instance, decide that he was competent to stand trial despite the fact that there has been no valid determination on competency in this case. I. I begin with Cabrera-Rivas’s challenge to the magistrate judge’s authority to make a final competency determination. The majority opinion concludes that this argument is irrelevant because Cabrera-Rivas either waived or forfeited it by failing to object within fourteen days of the competency order. But as the Supreme Court observed more than a half century ago, “it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ 32 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 33 of 55 his right to have the court determine his capacity to stand trial.” 1 Pate v.

Robinson, 383 U.S. 375, 384 (1966); see id. at 388 (Harlan, J., dissenting) (“I agree also that [a defendant’s incompetency at trial] is not ‘waived’ by failure to raise it and that it may entitle the defendant to a new trial without further proof. Waiver is not an apposite concept where we premise a defendant so deranged that he cannot oversee his lawyers.”); Smith v. Moore, 137 F.3d 808, 818 (4th Cir. 1998) (“The Supreme Court has held that an incompetent defendant cannot knowingly or intelligently waive his right to have the court determine his competency.”). So long as Cabrera-Rivas can assert reasonable cause that he was not competent at the time of trial, he is entitled to a valid competency determination.2 Such a rule makes sense: competency is the sine qua non of a fair trial as upon it is predicated “the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so.” Riggins v. 1 The Pate Court used the language of waiver, but in that case the state argued that the defendant “intelligently waived this issue by his failure to request a hearing on his

competence at the trial.” 383 U.S. at 378.

Under our current doctrine, such argument would be properly seen as sounding in forfeiture, not waiver. See Stokes v. Stirling, 64 F.4th 131, 136 n.3 (4th Cir. 2023). 2 To be clear, this Court has held that arguments surrounding competency are subject to procedural default in habeas proceedings. See Smith, 137 F.3d at 818–19 (“The rather unremarkable premise behind Drope and Pate is that an incompetent defendant cannot knowingly or intelligently waive his rights[, but] . . . the rationale of Drope and Pate are inapposite in the context of a procedural default.”). While this Court has noted that the courts of appeal are divided on this issue, it has not found any reason to revisit its decision. See Basham, 789 F.3d at 379 n.10. Thus, I will not do so here either. Regardless, this case is on direct appeal, where procedural default does not apply. 33 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 34 of 55 Nevada, 504 U.S. 127, 139–40 (1992) (Kennedy, J., concurring in the judgment).

Much like effective assistance of counsel, competency is so vital that we consider it unwaivable. Before trial, the district court referred a motion to determine Cabrera-Rivas’s competency to a magistrate judge under 28 U.S.C. § 636(b). That provision differentiates non-dispositive pretrial matters from dispositive matters. For non-dispositive pretrial matters, the magistrate judge may hear the issue and make a determination that is reviewable by the district court for clear error. For dispositive matters, by contrast, the magistrate judge writes a report and recommendation that the district court may accept, reject, or modify. Federal Rule of Criminal Procedure 59 mirrors this approach. Competency to stand trial is a dispositive matter—no matter how much the majority resists taking a position on this issue. The Federal Magistrates Act classifies as dispositive motions that could formally end proceedings, like a motion “to dismiss or quash an indictment,” as well as those that could effectively end proceedings, like a motion “to suppress evidence in a criminal case.” 28 U.S.C. § 636(b)(1)(A).

Competency falls in the former category because, after all, “[t]he Due Process Clause of the Fifth Amendment prohibits the federal government from trying and convicting a mentally incompetent defendant.” Basham, 789 F.3d at 379; see also Godinez v. Moran, 509 U.S. 389, 396 (1993) (“A criminal defendant may not be tried unless he is competent[.]”). So when the Ninth Circuit analyzed the statute governing competency hearings, it held that the decision to authorize involuntary medication designed to restore competency is a dispositive pretrial matter that cannot be fully delegated to a magistrate judge because it “will have direct 34 USCA4 Appeal: 22-4331 Doc: 95 Filed: 06/30/2025 Pg: 35 of 55 consequences on [the defendant]’s defense that he is not competent to stand trial.” United States v. Rivera-Guerrero, 377 F.3d 1064, 1069 (9th Cir. 2004).

The constitutional responsibilities of a federal court during trial further support the position that Congress would only permit delegation of a competency determination if the findings were susceptible to de novo review. The Supreme Court has held that “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” even if doing so may “abort[] the trial.” Drope, 420 U.S. at 181–82. And recognizing that a defendant’s competency is not static and thus can change over the course of proceedings, Congress emphasized that competency motions can be made “[a]t any time after the commencement of a prosecution” and declined to impose a limit on the number of times such motions can be made. 18 U.S.C. § 4241(a). It would thus be passing strange for Congress to permit the district court to fully delegate initial fact-finding on competency and only be able to review that fact-findin