                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              AUG 29 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   18-50123

              Plaintiff-Appellee,                D.C. No.
                                                 3:16-cr-02557-BEN-1
 v.

DONNELL THOMAS,                                  MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                      Argued and Submitted August 14, 2018
                            San Francisco, California

Before: SCHROEDER, SILER,** and MURGUIA, Circuit Judges.

      Defendant-Appellant Donnell Thomas brings this interlocutory appeal

challenging the district court’s order extending pretrial commitment for an

additional 120 days for possible restoration of competency. We affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
      Thomas first contends that the district court failed to apply the correct legal

standard. While the order itself, drafted by Thomas’s counsel, did not reference

the standard, the record makes it abundantly clear that the district court applied the

proper standard: whether there is a “substantial probability” that he would be

restored to competence within an additional reasonable period of time. 18 U.S.C. §

4241(d)(2)(A); see United States v. Loughner, 672 F.3d 731, 769–70 (9th Cir.

2012).

      We find no clear error in the district court’s determination that the

appropriate standard was satisfied. See Loughner, 672 F.3d at 770–72. The

court’s determination was supported by Dr. Tyner’s opinion, which was, in turn,

based on dozens of interactions with Thomas. The request for a Sell hearing was

premature, and the 120-day extension was reasonable under the circumstances, see

Jackson v. Indiana, 406 U.S. 715, 738 (1972), Rivera-Guerrero, 426 F.3d at 1137

(explaining that Sell hearings are disfavored and that such hearings adjudicate

whether a person should be involuntarily medicated when attempting to restore the

person to competency). The district court correctly concluded that the attorney

general should determine whether to file a dangerousness certificate upon a finding

that Thomas cannot be restored. 18 U.S.C. §§ 4241(d), 4246.




                                           2
      The government’s request to supplement the record (Dkt. Nos. 20–22) is

denied. The district court must now determine what further proceedings are

appropriate.

      AFFIRMED.




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