                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 13-6869


UNITED STATES OF AMERICA,

                 Petitioner – Appellee,

          v.

THOMAS CONROY,

                 Respondent - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:06-hc-02050-BR)


Submitted:   November 19, 2013             Decided:   November 22, 2013


Before GREGORY, SHEDD, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Joseph Bart
Gilbert, Assistant Federal Public Defender, Susan Umstead,
Research & Writing Attorney, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Jennifer D. Dannels, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Thomas     Conroy   appeals     the    district    court’s   order

continuing his civil commitment pursuant to 18 U.S.C. § 4246

(2012).   As set forth below, we affirm.

                                      I.

           In March 2005, the United States District Court for

the Central District of California found Conroy incompetent to

stand trial on a charge of mailing a threatening communication,

in   violation   of   18   U.S.C.   § 876(c)     (2012).     Thereafter,   the

California district court ordered that Conroy be transported to

the Bureau of Prisons’ facility at Butner, North Carolina, and

evaluated for civil commitment pursuant to 18 U.S.C. § 4246. 1

Later, the Government filed a certificate of mental disease or

defect and dangerousness in the United States District Court for

the Eastern District of North Carolina. 2          That court—the district


      1
       “Section 4246 applies to individuals who are due for
release from federal custody either because they have been found
not competent to stand trial, because the charges against them
have been dropped solely because of mental illness, or because
they have completely served their sentences of imprisonment.”
United States v. Baker, 45 F.3d 837, 840 n.1 (4th Cir. 1995).
      2
       Under § 4246(a), the director of the facility in which a
person found incompetent to stand trial is hospitalized may
certify that the person is “presently suffering from a mental
disease or defect as a result of which his release would create
a substantial risk of bodily injury to another person or serious
damage to property of another, and that suitable arrangements
for State custody and care of the person are not available,” and
the director “shall transmit the certificate to the clerk of the
(Continued)
                                      2
court below—later held a § 4246 hearing to determine Conroy’s

mental     condition.             After    finding        by      clear    and     convincing

evidence that Conroy was then suffering from a mental disease or

defect     as    a    result       of     which     his      release      would    create    a

substantial risk of bodily injury to another person or serious

damage to the property of another, the district court committed

him   to   the       care   and    custody        of   the     Attorney     General     under

18 U.S.C. § 4246(d) by order dated July 11, 2006.

            On June 20, 2007, the district court ordered Conroy’s

conditional release to a group housing facility in Durham, North

Carolina.        In July 2010, the district court revoked Conroy’s

release, and Conroy was returned to FMC Butner.

            In       August    2012,      the     Warden     of    FMC    Butner    filed   an

annual forensic report with the district court in accordance

with 18 U.S.C. § 4247(e)(1)(B) (2012) concerning Conroy’s mental

condition and the need for his continued commitment.                               The report

was signed by FMC Butner staff psychiatrist Dr. Ralph Newman and

staff psychologist Dr. Adeirdre Riley (“the FMC staffers”) and

contained references to Conroy’s relevant background history, a




court for the district in which the person is confined.”
18 U.S.C. § 4246(a).    Because Conroy was then hospitalized at
the   Federal   Medical   Center  in   Butner,  North  Carolina
(“FMC Butner”), the certificate was filed in the Eastern
District of North Carolina.



                                                3
mental     health    diagnosis,      and    a    risk       assessment        pursuant     to

§ 4246.      The annual report reflects that Conroy was diagnosed as

suffering from Schizophrenia, Undifferentiated Type, and that,

in   the   year     since    FMC   Butner’s      last       update   to       the   district

court, his mental status had deteriorated.                        In this regard, the

report reflects that Conroy demonstrated a “prominent thought

disorder” and voiced the “primary delusion” that a device able

to control his behavior had been inserted into his neck when he

was a child.        The FMC staffers opined that Conroy’s judgment and

insight    into     his     condition    were     impaired        and    noted      that    he

viewed medication as having no effect on himself.

             The    report     further     reflects,         however,     that,      in    the

five months preceding its filing, Conroy’s “mental status” had

“slowly      improved,”       as    evidenced          by     a    decrease         in     his

preoccupation       with     auditory    hallucinations           and    a     decrease     in

references to the device that he believed had been inserted into

his neck.      Although the report reflects that Conroy had complied

with   FMC    Butner’s       regulations        and    had    received        no    incident

reports or disciplinary actions in the three months preceding

the filing of the report, he also chose not to participate in

therapeutic groups or an institutional job assignment, and he

continued to struggle with anxiety and restlessness.                                The FMC

staffers      opined        that    Conroy’s          prognosis         for     additional

improvement was “guarded.”

                                           4
              The     report       further      relates        that        Conroy     exhibited

several     factors      associated           with      a    risk     of     future    violent

behavior,      including:          his    past        history         of     violence;        his

schizophrenia diagnosis and history of acting in response to his

persecutory         delusions      of    being       followed        or     surveilled;       his

history of gun possession; his lack of a social support system;

and the deterioration in his mental health status.                              In light of

these factors, Conroy’s “poor” insight into his condition, and

the fact that delusions, hallucinations, and a thought disorder

remained,      the     FMC    staffers        opined         that    Conroy     was    not    an

“appropriate”         candidate         for     conditional           release       into      the

community.

              The district court later granted Conroy’s motions for

a   hearing    to     determine      whether       he       should   be     discharged       from

commitment      under        § 4246      and       for       the     appointment        of     an

independent mental health examiner.                          The independent examiner,

psychiatrist Dr. Holly Rogers, completed a written report after

evaluating     Conroy        and    considering          his    medical       chart,    prison

file, the annual report, Rogers’s prior evaluation of Conroy,

and a conditional release violation report.                           Rogers opined that,

although      the      most        accurate          diagnosis         for      Conroy        was

Schizoaffective Disorder, Bipolar Type, the difference between

this diagnosis and a diagnosis of Schizophrenia was “somewhat

academic,” as the treatment for both conditions would be the

                                               5
same.     In Dr. Rogers’s view, there was evidence in Conroy’s case

both for and against his posing a risk of future dangerousness.

Factors      that    increased     his     risk   of    future      dangerousness

included: the nature of his illness, which Rogers characterized

as a “difficult to treat, chronic psychotic illness”; Conroy’s

level   of    insight   into     his   illness,    which    Rogers      opined   was

associated with an unlikelihood that he would continue treatment

of his own accord; Conroy’s history of acquiring weapons and

acting on his paranoid beliefs; and his lack of a relationship

with family members willing to care and take responsibility for

him.       Factors    that     mitigated      against   his      risk   of   future

dangerousness       included:    his     intelligence      and    capability     for

self-sufficiency when his psychotic symptoms were under control;

and his lack of a substance abuse history.                  Dr. Rogers opined,

however, that these mitigating factors did not outweigh the risk

factors and that Conroy thus still was suffering from a mental

disease and, as a result of the disease, presented a substantial

risk of future dangerousness to others or their property such

that he continued to meet the criteria for continued commitment

under § 4246.

             After a hearing at which Conroy testified, Dr. Newman

testified as an expert in the field of forensic psychiatry, and

the annual report and Dr. Rogers’s report were admitted into

evidence, the district court determined that Conroy continued to

                                          6
meet    the    criteria         for       care    and    treatment           under     § 4246       and

ordered    Conroy’s        continued             commitment.             Conroy    now       appeals,

arguing that the district court erred in ordering his continued

commitment.

                                                  II.

                                                  A.

              A person committed under 18 U.S.C. § 4246 may, through

his counsel or legal guardian, file a motion for a hearing to

determine whether he should be released.                                 18 U.S.C. § 4247(h).

The district court that ordered the commitment may discharge the

person     committed           if    it    finds,        by     a    preponderance           of      the

evidence, that the person has recovered from his mental disease

or defect to such an extent that his release would no longer

create “a substantial risk of bodily injury to another person or

serious damage to property of another.”                               Id. § 4246(e)(1)-(2).

The    committed         person      seeking       discharge          bears      the     burden      of

proving       he   has     so       recovered.            Sealed         Appellee       v.        Sealed

Appellant,         665     F.3d       620,        623     &     n.4       (5th       Cir.     2011);

United States v. Evanoff, 10 F.3d 559, 563 (8th Cir. 1993).

              The district court’s finding that continued commitment

is    warranted     is     a    factual      determination               this   court       will    not

overturn      unless       clearly         erroneous.               United      States       v.    Cox,

964 F.2d      1431,      1433       (4th    Cir.       1992).        A    finding      is     clearly

erroneous “when, although there is evidence to support it, the

                                                   7
reviewing court on the entire evidence is left with the definite

and    firm     conviction        that     a       mistake      has     been     committed.”

United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008)

(internal quotation marks omitted).                       However, “if the district

court’s account of the evidence is plausible in light of the

record viewed in its entirety,” this court will not reverse the

district court’s finding even if it would have “decided the fact

differently.”            United States v. Stevenson, 396 F.3d 538, 542

(4th    Cir.       2005)     (internal         quotation        marks      and    alteration

omitted).

                                               B.

              We     conclude       that       the       district       court’s      findings

justifying         Conroy’s      continued          commitment        were     not    clearly

erroneous.         First, the FMC staffers and Dr. Rogers—through their

testimony and reports—agreed that Conroy suffers from a mental

illness, disagreeing only on the exact classification of the

disease.       Although the FMC staffers’ diagnosis differed from

that    given       by     Dr.   Rogers,        she      herself      characterized      the

difference as “somewhat academic,” and Dr. Newman stated during

his     hearing           testimony        that          both       schizophrenia        and

schizoaffective          disorder     would         be   treated      in   “virtually    the

same” manner and had similar prognoses.                         While Conroy argues on

appeal that the preponderance of the evidence produced at the

hearing showed that he had recovered from his schizophrenia to

                                               8
the    extent      that   his      release   would    not   create   a   substantial

danger to the community, he makes this argument in a wholly

conclusory fashion.                Moreover, after review, we conclude that

nothing       in   the    record     contradicts      the   opinions     that    Conroy

continues to suffer from a mental disease or defect.                             In the

hearing below, Conroy offered no testimony or other evidence

suggesting that he had recovered from his illness, and nothing

else in the record on appeal suggests that Conroy has recovered

from    his    illness.         Accordingly,      the    district    court      did   not

clearly err when it found that Conroy continued to suffer from a

mental disease or defect.

               Second,       the    totality     of   the   evidence     before       the

district court established that, in light of Conroy’s mental

illness, his release would create a substantial risk of bodily

injury    to       another    person    or     serious   damage     to   property      of

another.       In support of their opinion, the FMC staffers reported

that Conroy exhibited several factors associated with a risk of

future violence, and, during his hearing testimony, Dr. Newman

reiterated his conclusion in that report that Conroy still met

the criteria under § 4246 for continued commitment.                       Dr. Rogers

also opined that Conroy exhibited factors associated with a risk

of future violence, that the mitigating factors present in his

case did not outweigh the risk factors, and that Conroy thus met

the criteria under § 4246 for continued commitment.

                                             9
               The    factors    relied         upon    by    these    professionals        are

among those typically considered by mental health professionals

in    conducting       risk   assessments            under     § 4246.         E.g.,    United

States v. Ecker, 30 F.3d 966, 970 (8th Cir. 1994); Cox, 964 F.2d

at     1433.         Thus,    the     evidence         before        the     district     court

established      that    Conroy’s         release       would       create    a    substantial

risk of bodily injury to another person or serious damage to the

property of another.

               Conroy responds by arguing that the finding in the

annual     report       of      “possible            dangerousness”          is     based    on

“conjecture       and    speculation”           and    thus     is    not     sufficient     to

support a conclusion of substantial risk under § 4246.                                   Conroy

emphasizes that Drs. Newman and Rogers—through their testimony

and reports—made note of his intelligence and capability for

self-sufficiency, his lack of a recent, significant history of

substance abuse, his improvements in insight into his illness,

institutional         adjustment,         and    compliance         with     his   medication

regimen, and his demonstrated ability to live a period of time

free    from     violence     against       others       at     FMC    Butner.          Conroy,

however, misstates the record.                   The annual report does not make

a finding of “possible dangerousness” as Conroy claims.                                 Rather,

the     report       reflects       the     opinion          that     Conroy’s      continued

commitment under § 4246 was appropriate in light of several risk

factors.         Moreover,          § 4246’s         dangerousness           evaluation     and

                                                10
determination        require       evaluators    and    the       district    court    to

consider      the      committed       person’s        “entire       behavioral        and

psychological profile.”               United States v. Williams, 299 F.3d

673, 677 (8th Cir. 2002); see Cox, 964 F.2d at 1433.                           Conroy’s

intelligence, capabilities, and improvements were but pieces of

the    data    among    the    broad     spectrum      of     information      properly

considered.

              Because the evaluators in this case considered a host

of    relevant      factors    convincing       them    that       Conroy    still     was

suffering from a mental disease or defect to the extent that his

release    would     create    a    substantial       risk   of    bodily     injury    to

another person or serious damage to the property of another, the

evidence cleared the hurdle that Conroy’s release presented a

“substantial risk.”            18 U.S.C. § 4246(d).            Accordingly, Conroy

did not meet his burden to show that he had recovered, and the

district      court     did     not    clearly        err    in     relying     on     the

uncontroverted opinion evidence to find that Conroy continued to

satisfy the criteria for civil commitment under § 4246.

                                         III.

              We    therefore       affirm      the    district       court’s        order

continuing Conroy’s civil commitment.                       We dispense with oral

argument because the facts and legal contentions are adequately




                                          11
presented in the materials before this court and argument would

not aid the decisional process.

                                                       AFFIRMED




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