                              PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 10-7611


UNITED STATES OF AMERICA,

               Petitioner – Appellant,

          v.

DONALD BRONCHEAU,

               Respondent – Appellee.



                             No. 10-7616


UNITED STATES OF AMERICA,

               Petitioner – Appellant,

          v.

JEFFREY NEUHAUSER,

               Respondent – Appellee.



                             No. 10-7617


UNITED STATES OF AMERICA,

               Petitioner – Appellant,

          v.
JERRY T. ROGERS,

               Respondent – Appellee.



                            No. 10-7618


UNITED STATES OF AMERICA,

               Petitioner – Appellant,

          v.

DAVID HENRY TOBEY,

               Respondent – Appellee.



                            No. 10-7619


UNITED STATES OF AMERICA,

               Petitioner – Appellant,

          v.

SCOTT KEVIN COMBE,

               Respondent – Appellee.



                            No. 10-7620


UNITED STATES OF AMERICA,

               Petitioner – Appellant,

          v.




                                 2
MATHIAS THOMAS KOPP,

               Respondent – Appellee.



                            No. 10-7621


UNITED STATES OF AMERICA,

               Petitioner – Appellant,

          v.

EDWARD DAVID ERWIN,

               Respondent – Appellee.



                            No. 10-7622


UNITED STATES OF AMERICA,

               Petitioner – Appellant,

          v.

PATRICK CAPORALE,

               Respondent – Appellee.



                            No. 10-7623


UNITED STATES OF AMERICA,

               Petitioner – Appellant,

          v.




                                 3
KEVIN MCGREEVY,

                  Respondent – Appellee.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh.       Terrence W. Boyle,
District Judge.    (5:06-hc-02219-BO; 5:07-hc-02101-BO; 5:07-hc-
02148-BO; 5:07-hc-02166-BO; 5:07-hc-02025-BO; 5:07-hc-02185-BO;
5:07-hc-02206-BO; 5:08-hc-02037-BO; 5:07-hc-02063-BO)


Argued:   March 22, 2011                   Decided:   May 26, 2011


Before KING, GREGORY, and WYNN, Circuit Judges.


Vacated and remanded by published opinion. Judge King wrote the
opinion, in which Judge Gregory and Judge Wynn joined.    Judge
Wynn wrote a separate concurring opinion.


ARGUED:    Samantha Lee Chaifetz, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant.      G. Alan DuBois,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellees. ON BRIEF: Tony West, Assistant Attorney General,
Mark B. Stern, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; George E. B. Holding, United States Attorney, R. A.
Renfer, Jr., Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant.
Samuel A. Forehand, SAMUEL A. FOREHAND, P.A., Raleigh, North
Carolina, for Appellee Rogers; Thomas P. McNamara, Federal
Public Defender, Raleigh, North Carolina, for all other
Appellees.




                                   4
KING, Circuit Judge:

       In   these    consolidated        appeals,         we   are     called    upon    to

resolve issues concerning the Adam Walsh Child Protection and

Safety Act of 2006, specifically the civil commitment provisions

codified at 18 U.S.C. § 4248.                    Invoking those provisions, the

government       initiated    proceedings          in    the   Eastern     District      of

North Carolina seeking the civil commitment of the Respondents-

Appellees    —      all   prisoners     in       the    custody   of    the     Bureau   of

Prisons (the “BOP”) — because the government has certified them

as “sexually dangerous person[s].”                     After delays precipitated by

related litigation challenging the constitutionality of § 4248,

the district court collectively dismissed all nine proceedings.

See United States v. Broncheau, No. 06-HC-2219 (L), (E.D.N.C.

Oct. 29, 2010) (the “Dismissal Order”). 1                       The Dismissal Order

reasoned that the proceedings had not been properly instituted

because, with respect to prisoners whose sentences include a

term   of   supervised       release,    § 4241         of   Title   18,      rather   than

§ 4248,     is    “the    proper   way       to    initiate       [civil      commitment]

proceedings       under   the   Adam     Walsh         Act.”      Id.    at     15.      The




       1
       The Dismissal Order has been designated for publication,
but has not yet appeared in the Federal Supplement. We cite to
the slip opinion of the district court, which may be found at
2010 WL 4484635.



                                             5
government has appealed, and, as explained below, we vacate the

Dismissal Order and remand.



                                              I.

       We begin by identifying the applicable statutory provisions

and    briefly     explaining          the    constitutional         challenges         to    18

U.S.C. § 4248 that have been heretofore resolved.                             We then set

forth the relevant background of these proceedings.

                                              A.

       By the enactment of § 4248, Congress addressed the dangers

associated with the release from custody of persons who, because

of mental illness, are likely to have difficulty refraining from

violent or dangerous sexual conduct.                     Section 4248 established a

statutory mechanism whereby the United States may seek the civil

commitment of a “sexually dangerous person” who is in federal

custody,    even    when      doing     so    detains        the   prisoner       beyond     the

expiration of his sentence of imprisonment.                          See United States

v.    Comstock,     130      S.   Ct.       1949,     1961     (2010).        A    “sexually

dangerous person” is defined as “a person who has engaged or

attempted    to     engage        in    sexually        violent      conduct       or   child

molestation and who is sexually dangerous to others.”                              18 U.S.C.

§ 4247(a)(5).           In   turn,      a    person     is    “sexually   dangerous          to

others”     if     he     “suffers          from    a    serious      mental        illness,

abnormality, or disorder as a result of which he would have

                                               6
serious difficulty in refraining from sexually violent conduct

or child molestation if released.”             § 4247(a)(6).

     In order to institute a § 4248 civil commitment proceeding,

an authorized official must first certify that the prospective

respondent     is   a    “sexually      dangerous    person.”           18   U.S.C.

§ 4248(a). 2    On the basis thereof, the government initiates a

§ 4248 commitment proceeding by filing the certification in the

district court where the respondent is confined.                  See id.    Three

categories of sexually dangerous persons are eligible to be so

certified:      (1)     persons   “in    the    custody    of    the    Bureau   of

Prisons”; (2) persons “committed to the custody of the Attorney

General   pursuant      to   section    4241(d)”    on   the    basis   of   mental

incompetency; and (3) persons “against whom all criminal charges

have been dismissed solely for reasons relating to the mental

     2
       Section 4248(a) specifies the procedures by which the
government may institute a civil commitment proceeding on the
basis of sexual dangerousness. It provides, in pertinent part,
that

     the Attorney General or any [authorized official] may
     certify that [an eligible] person is a sexually
     dangerous person, and transmit the certificate to the
     clerk of the court for the district in which the
     person is confined. . . .   The court shall order a
     hearing to determine whether the person is a sexually
     dangerous person. A certificate filed under this
     subsection shall stay the release of the person
     pending completion of procedures contained in this
     section.

18 U.S.C. § 4248(a).



                                         7
condition of the person.”             Id.     These nine Respondents were each

eligible       for    certification     under       the     first    of   these    three

categories, that is, they were (and remain) in the custody of

the BOP.

      When a § 4248 certification is filed in the district court,

the   respondent’s       release      from       custody    is   immediately      stayed

pending completion of the prescribed procedures.                      See § 4248(a).

These     procedures       include,         inter     alia,      a   psychiatric     or

psychological examination of the respondent (if ordered by the

district court pursuant to § 4248(b)), and a hearing conducted

in accordance with 18 U.S.C. § 4247(d). 3                   If, after the hearing,

the   court     finds    by   clear     and       convincing     evidence    that   the

respondent is a “sexually dangerous person,” it must “commit the

person    to    the    custody   of   the        Attorney   General.”       § 4248(d).



      3
       The provisions of § 4247(d) of Title 18 apply to § 4248
proceedings.    See § 4248(c).    Section 4247(d) details the
procedural requirements of a § 4248 hearing, specifying, in
pertinent part, that

        [a]t a hearing ordered pursuant to this chapter the
        person whose mental condition is the subject of the
        hearing shall be represented by counsel and, if he is
        financially unable to obtain adequate representation,
        counsel shall be appointed for him . . . . The person
        shall be afforded an opportunity to testify, to
        present evidence, to subpoena witnesses on his behalf,
        and to confront and cross-examine witnesses who appear
        at the hearing.

18 U.S.C. § 4247(d).



                                             8
Such a respondent remains so committed until he is “no longer

sexually dangerous to others.”               § 4248(d). 4

                                            B.

       The    § 4248     civil     commitment          process        has    faced     several

constitutional         challenges       since        its        enactment.        See,   e.g.,

United States v. Volungus, 595 F.3d 1 (1st Cir. 2010); United

States v. Comstock, 551 F.3d 274 (4th Cir. 2009) (“Comstock I”).

In    2007,   a     district      court    in       this    Circuit        struck    down   the

commitment scheme of § 4248 on two constitutional grounds:                                  that

(1)   Congress       lacked    the      authority          to    enact     § 4248;    and   (2)

§ 4248’s clear and convincing burden of proof contravened the

Due Process Clause of the Fifth Amendment.                          See United States v.

Comstock, 507 F. Supp. 2d 522 (E.D.N.C. 2007).                               On appeal, we

agreed with the district court that enactment of § 4248 exceeded

congressional authority, without reaching the due process issue.

See Comstock I, 551 F.3d at 276.

       In    May    2010,   the    Supreme          Court       reversed    our   Comstock    I

decision, holding that Article I of the Constitution conferred

sufficient         authority      for     Congress          to     enact     § 4248.        See


       4
       A respondent committed pursuant to § 4248 is entitled to
seek from the court that ordered his commitment a “hearing to
determine whether [he] should be discharged from the facility.”
See § 4247(h).    Such relief cannot be first sought, however,
until 180 days after the respondent was civilly committed. See
id.



                                                9
Comstock,          130     S.    Ct.       at    1954     (recognizing      that         Constitution

grants authority for Congress “to enact § 4248 as necessary and

proper       for     carrying         into       Execution       the    powers       vested      by   the

Constitution” (internal quotation marks omitted)).                                         The Court

remanded for an assessment of the unresolved issue of whether

§ 4248’s           clear       and     convincing         burden       of   proof        abridged       a

certified respondent’s Fifth Amendment due process rights.                                            See

id. at 1965.             On December 6, 2010, we concluded that the burden

of proof under § 4248 did not, on its face, offend the Fifth

Amendment, and thus reversed the district court.                                          See United

States        v.    Comstock,          627        F.3d    513,    524-25     (4th        Cir.     2010)

(“Comstock II”).

                                                     C.

        The    relevant          facts          underlying      these    consolidated           appeals

are         substantially             similar.             The     nine      Respondents              are

incarcerated at the Federal Correctional Institute at Butner,

North        Carolina       (“FCI-Butner”),               and    they    were        —    when    their

respective certifications were made — about to be released from

BOP     custody          and    begin           serving    previously       imposed         terms      of

supervised release. 5                  Shortly before each Respondent was to be

released,          however,          the    government          instituted       a    § 4248      civil

        5
       The Respondents’ various terms of supervised release were
scheduled to begin between January 4, 2007, and March 21, 2008,
at the conclusion of their individual terms of imprisonment.



                                                     10
commitment         proceeding,           filing         a     certification           that       the

particular Respondent was in the custody of the BOP, a “sexually

dangerous person,” and “sexually dangerous to others.”                                 Pursuant

to § 4248(a), the filing of these certifications stayed release

of the Respondents.

      Although the government has consistently acknowledged that

the   Respondents          are    entitled         to   hearings      and    rulings        on   the

merits      of     their     respective            § 4248     certifications,          no        such

hearings have been conducted and the § 4248 procedures have not

been completed.            By way of explanation, the § 4248 proceedings

were initially stayed by the district court pending resolution

of    the        constitutional          issues         presented       in     the     Comstock

litigation.            After      the     Supreme         Court     reversed        Comstock      I,

however,         the   Chief      Judge       of    the     district        court     entered      a

standing     order      establishing,              inter    alia,     procedures       by    which

§ 4248      respondents          could     request          merits     hearings       on     their

certifications,         rather         than    await        judicial        determination         of

pending constitutional issues in other litigation.                              See Standing

Order, 10-SO-01 (E.D.N.C. Aug. 4, 2010).

      By    September        2010,      each       of   the   Respondents       had     filed      a

motion      to    dismiss        his    § 4248       commitment       proceeding.            These

dismissal          motions         were        predicated            primarily         on        the

constitutional          contentions            being        pursued     in     the     Comstock



                                                   11
litigation. 6         On October 29, 2010, before Comstock II resolved

the    Fifth      Amendment       burden-of-proof           issue   in     favor    of    the

government, the district court entered its Dismissal Order.

       It    is     undisputed     that       the   Respondents     were     each    in   the

custody      of     the     BOP   when    they       were    certified,      pursuant       to

§ 4248(a)’s         first    category         of    eligible     persons,    as     sexually

dangerous, as well as when these commitment proceedings were

instituted.          Nonetheless, the district court dismissed the nine

commitment proceedings, expressing its concern that continuing

to    hold    the    Respondents         at    FCI-Butner,       rather    than     allowing

their       terms    of     supervised         release      to   commence,     implicated

“various       due    process      concerns.”            See     Dismissal    Order       15. 7

       6
       The Respondents’ motions to dismiss in these cases made
several arguments in addition to the constitutional contentions
relied upon by the Comstock respondents. More specifically, the
Respondents alleged that their terms of supervised release
provided adequate safeguards to the public, that these § 4248
certifications were premature and unnecessary, and that the
stigma of being labeled “a sexually dangerous person” is a
lifelong burden.
       7
       The Dismissal Order observed that at least one district
court had concluded that § 4248 “fails to provide procedural and
evidentiary protections sufficient to satisfy procedural due
process, on its face and as applied.”        Dismissal Order 11
(citing Timms v. Johns, 700 F. Supp. 2d 764, 770-74 (E.D.N.C.
2010), vacated, 627 F.3d 525 (4th Cir. 2010)).      The district
court also stated its view that, by “staying the commencement of
respondents’ court-ordered terms of supervised release, the
section 4248 certifications filed by the government have
circumvented   court-ordered  criminal   judgments   across  the
country, judgments which only the courts of imposition have the
power to modify.” Id. at 16.


                                               12
Although     the     Dismissal     Order       identified      several       potential

constitutional deficiencies in the § 4248 commitment procedures,

the court did not rule that § 4248 was unconstitutional, either

facially or as applied.            Instead, the court — relying on the

principle that constitutional questions should be avoided when

possible,    plus     the   rule   that    statutes      relating      to    the   same

subject matter should be read together, that is, in pari materia

—     decided    that    these     proceedings         had    not    been    properly

instituted.        In particular, the court ruled that the government

should have proceeded first under § 4241, rather than pursuant

to § 4248, explaining that “when a respondent has not completed

his   sentence      because   he   has    a    remaining      term    of    supervised

release, the use of section 4241 is the proper way to initiate

[civil     commitment]      proceedings        under    the    Adam    Walsh       Act.”

Dismissal Order 15. 8

       Under the approach espoused by the Dismissal Order, if the

government believes that a soon-to-be-released federal prisoner

is a sexually dangerous person and that a civil commitment under


       8
       Section 4241 of Title 18 was first enacted in 1948 and
authorizes the commitment of a criminal defendant who, as a
result of a mental disease or defect, lacks the mental
competency to stand trial or undergo post-release proceedings.
See § 4241(a). Section 4241 thus provides a mechanism to secure
a judicial determination of a criminal defendant’s competency,
thereby protecting the defendant’s fair trial rights and the
integrity of judicial proceedings.



                                          13
§ 4248 is appropriate, it must first await the release of the

prisoner from BOP custody and thereafter obtain a commitment

order under      § 4241.    The   government     may    then     pursue    a   § 4248

commitment under the second category of the persons eligible for

certification — that is, those “committed to the custody of the

Attorney General pursuant to section 4241(d).”                   § 4248(a).      The

district    court       explained    that      requiring       such       commitment

proceedings      to    be   initiated        under    § 4241     alleviates       the

constitutional        concerns    presented     by     § 4248.        Because     the

government did not institute these proceedings by first seeking

a commitment order under § 4241, the court dismissed them and

ordered    the   Respondents      released     from    custody     within      thirty

days, by November 28, 2010.

      The government promptly appealed the Dismissal Order, and,

in connection therewith, sought from the district court a stay

of the Respondents’ releases from BOP custody pending appeal.

The   district    court     denied   the     government’s      stay    request    on

November 22, 2010, after which the government moved this Court

for issuance of an emergency stay.                   On November 26, 2010, we

granted the government’s stay request and expedited the briefing

and oral argument schedule.          The Respondents therefore remain in

the custody of the BOP, and we possess jurisdiction pursuant to

28 U.S.C. § 1291.



                                        14
                                                   II.

       This    appeal          presents       issues       of    statutory          construction,

quintessential questions of law that we review de novo.                                        See

United States v. Abuagla, 336 F.3d 277, 278 (4th Cir. 2003).



                                               III.

       As   explained           herein,       18    U.S.C.       § 4248       was    enacted   to

protect the public from the dangers posed by releasing sexually

dangerous persons from federal custody.                               See United States v.

Comstock,     130        S.    Ct.   1949,     1961       (2010).         Although      § 4248(a)

spells out procedures for the government to follow in seeking

the civil commitment of such a sexually dangerous person, the

district      court       declined       to    give       effect     to      those    provisions.

Instead, the court devised an alternative approach that requires

the government to stand aside as a federal prisoner with an

upcoming      term       of    supervised          release       —    whom     the     government

believes      to    be        sexually     dangerous        —      is     released      from   BOP

custody.      After the prisoner’s release, the government may then

seek    his        commitment         on       a        ground       unrelated        to   sexual

dangerousness:                that    the      former        prisoner          is    “unable   to

understand         the    nature      and      consequences             of    the     proceedings

against him or to assist properly in his defense.”                                     18 U.S.C.

§ 4241(a).          Only then, after obtaining the former prisoner’s

commitment under § 4241, is the government entitled to file its

                                                   15
§ 4248    certification,            seeking    his    civil       commitment       —     under

§ 4248(a)’s second category of eligible persons — on the basis

that he is also sexually dangerous.

        When it crafted the foregoing procedure, the district court

was unable to take account of the merits of the then-pending

Fifth    Amendment      burden-of-proof            challenge      to    § 4248     that     was

resolved by our decision in Comstock II.                         See 627 F.3d 513 (4th

Cir. 2010).           Comstock II was decided in early December 2010,

scarcely     more      than    a     month    after       the    Dismissal       Order      was

entered.        Contemporaneously with Comstock II, we decided its

companion case of Timms v. Johns, 627 F.3d 525 (4th Cir. 2010).

In Timms, we vacated another of the primary authorities on which

the Dismissal Order relied in concluding that § 4248 presented

serious due process concerns.

        Our usual course whenever a fundamental change in the law

negates the underpinnings of a district court’s decision is to

remand    the    matter       for    the   court     to    reassess      whether       it   may

reinstate       its    judgment       consistent          with    the    evolving        legal

landscape.       See Adams v. Sch. Dist. No. 5, 444 F.2d. 99, 100-01

(4th Cir. 1971) (en banc).                 Although we could simply vacate the

Dismissal Order on the basis of Comstock II and Timms without

further    discussion,         compelling      interests         of     judicial    economy

warrant a more in-depth assessment of the procedures fashioned

by the district court concerning the initiation of § 4248 civil

                                              16
commitment      proceedings          against    sexually       dangerous       prisoners

whose     sentences      include      terms     of    supervised        release.        As

explained      below,    the    Dismissal       Order’s      approach    to   § 4248    —

requiring the government first to release the prisoner from BOP

custody, then obtain a commitment order under § 4241, and then

finally seek a separate civil commitment order under the second

category of persons eligible for certification under § 4248(a)

(those     “committed      to    the     custody      of     the    Attorney    General

pursuant to § 4241(d)”) — is flawed for at least three other

reasons:       first, it departs from the plain meaning of § 4248(a);

second, it erroneously reads § 4248 in pari materia with § 4241;

and, third, it erroneously invokes the canon of constitutional

avoidance.          For those reasons, and because the district court

did not have the timely benefit of the Comstock II and Timms

decisions,      vacating       the    Dismissal       Order    is    necessarily       the

prudent course.

                                           A.

        We first observe that § 4248 is unambiguous with respect to

the initiation of civil commitment proceedings against sexually

dangerous federal prisoners in BOP custody.                          And, where “the

terms     of    a    statute    are     unambiguous,          judicial    inquiry       is

complete, except in rare and exceptional circumstances.”                           Rubin

v. United States, 449 U.S. 424, 430 (1981) (internal quotation

marks    omitted).        As    the    Supreme       Court    has   explained,     if    a

                                           17
reviewing    court     determines      that       the   “legislative         purpose      is

expressed in plain and unambiguous language,” the duty of the

court is to “give [the statute] effect according to its terms.”

United States v. Rutherford, 442 U.S. 544, 552 (1979) (internal

quotation marks omitted).              We should also strive, of course,

when interpreting a statute, to give effect to each word and

provision thereof.          See Broughman v. Carver, 624 F.3d 670, 677

(4th Cir. 2010).

       Applying the foregoing principles, there is little or no

room for competing views on how Congress intended § 4248 civil

commitment proceedings to be initiated.                   As we have emphasized,

§ 4248 is explicit — an authorized official “may certify that

[an eligible individual] is a sexually dangerous person, and

transmit the certificate to the clerk for the court for the

district in which the person is confined.”                     § 4248(a).          Section

4248   is   also     unambiguous     with    respect     to    those        eligible     for

certification, and it identifies three categories of persons who

may    be   certified      as    sexually        dangerous    —      the    first    being

prisoners “in the custody of the Bureau of Prisons.”                          § 4248(a).

Notably,     there    is   no     exception       for   prisoners          (such    as   the

Respondents)       whose        sentences    include         terms     of     supervised

release.      For at least two reasons, we are convinced that a

prisoner whose sentence includes a term of supervised release



                                            18
falls within the class of persons “in the custody of the [BOP]”

and is thus subject to a § 4248 certification.

       First, as a factual matter, a prisoner in BOP custody whose

unexpired sentence includes a term of supervised release is no

less in the custody of the BOP than another prisoner who does

not face a term of supervised release.                              Second, in enacting

§ 4248,       Congress       did     not      neglect    to    assess       how     commitment

proceedings          are     to     be      initiated     against          prisoners         whose

sentences include terms of supervised release.                               Manifestly, we

are    unable        to    presume       that     Congress     was    unaware          of    those

offenses for which a term of supervised release is required.

See 18 U.S.C. § 3583(a), (k); Goodyear Atomic Corp. v. Miller,

486    U.S.    174,        185     (1988)     (explaining      that       courts       generally

presume       that    “Congress          is   knowledgeable         about        existing      law

pertinent to the legislation it enacts”).                            Nor can we conclude

that    Congress          failed    to     take    account     of    the     fact      that    the

Sentencing      Guidelines           contemplate        that   a     term    of     supervised

release    “shall          . . .    follow      imprisonment        when     a    sentence      of

imprisonment          of     more     than        one   year    is        imposed.”           USSG

§ 5D1.1(a).               Indeed,    the      overwhelming         majority       of        federal

criminal judgments include terms of supervised release.                                        See

United States Sentencing Commission, Federal Offenders Sentenced

to     Supervised          Release       49-50      (2010).          As     the     Sentencing

Commission recently explained, for those convicted of federal

                                                  19
felony or serious misdemeanor offenses between 2005 and 2009,

ninety-five    percent   faced     sentences      that   included      terms   of

supervised release.      See id.

      By treating a prisoner whose sentence includes a term of

supervised release differently than one with no such sentence,

the Dismissal Order creates a judicial exception to § 4248 for

the bulk of the BOP’s prisoners who are otherwise eligible for

certification.           A      cardinal       principle     of        statutory

interpretation,    however,       is    that     “[e]xceptions    to     clearly

delineated    statutes   will     be   implied    only   where   essential     to

prevent   absurd   results   or    consequences      obviously    at    variance

with the policy of the enactment as a whole.”                Rutherford, 442

U.S. at 552 (internal quotation marks omitted).                  The Dismissal

Order’s construction of § 4248 — excepting a sexually dangerous

prisoner whose sentence includes a term of supervised release

from certification so long as he remains in the BOP’s custody —

is not at all essential to avoid an absurd result.                Importantly,

such a construction of § 4248 would create a collateral problem

by   undermining   the   statute’s     stay-of-release      provision.         See

§ 4248(a).

                                       B.

      The Dismissal Order is also flawed by its invocation of the

in pari materia principle of statutory construction, which the



                                       20
district court used to justify its reliance on § 4241. 9                             We have

interpreted         the    principle       to    mean     that     “adjacent       statutory

subsections that refer to the same subject matter” should be

read harmoniously.               Va. Int’l Terminals, Inc. v. Edwards, 398

F.3d 313, 317 (4th Cir. 2005).                   The principle of in pari materia

is applicable, however, only “where the meaning of a statute is

ambiguous or doubtful.”              N. Pac. Ry. Co. v. United States, 156

F.2d 346, 350 (7th Cir. 1946); see also Greenport Basin & Const.

Co.    v.    United       States,    260    U.S.      512,    516    (1923)     (rejecting

argument         that    two    revenue    statutes       should      be    read     in    pari

materia where “the language of the act is clear,” and there is

thus       “no   room     for    argument       . . .    drawn      from    other    revenue

measures”).             The Dismissal Order, however, failed to identify

any ambiguity in the methodology employed by § 4248 to initiate

the civil commitment of sexually dangerous persons who are in

BOP custody.             Importantly, we are unable to discern any such

ambiguity.

       Moreover,          the    Dismissal       Order       did    not      recognize       or

acknowledge         the        fundamentally         different       purposes        of    the

commitment        provisions       embodied      in     § 4241     and     § 4248.        These

different purposes undermine the district court’s analysis in

       9
       In pari materia is generally accepted as being the Latin
term for “in like material or substance.”   John Gray, Lawyers’
Latin: A Vade-Mecum 72 (2002).



                                                21
this case, because the principle of in pari materia has no force

where two statutes “superficially relat[e] to similar subjects,”

but “a finer examination reveal[s] that the purposes underlying

the laws var[y].”            Firstar Bank, N.A. v. Faul, 253 F.3d 982, 990

(7th    Cir.        2001).            This     limitation          on     applicability              is

instructive, because § 4241 and § 4248 target different groups

and    have     different          goals.        Section         4248      sets        forth        the

commitment procedures for “sexually dangerous person[s]” who are

in federal custody, and is designed to protect the public from

such persons.             § 4248(a) (emphasis added); see also Comstock,

130    S.     Ct.    at     1961      (“As     federal       custodian,         [the      federal

government]         has    the    constitutional           power    to    act     in    order        to

protect       nearby       (and       other)     communities            from     the      dangers

[sexually dangerous] federal prisoners may pose.”).

       Section       4241,       in    contrast       to     § 4248,       constitutes              the

proverbial “horse of a different color.”                           Section 4241 addresses

the    circumstances         under       which       the    mental        competency           of    a

criminal defendant is to be assessed.                            See § 4241(a).           It was

designed to ensure the integrity of the judicial system, i.e.,

protecting a defendant from criminal proceedings that he cannot

understand,          and     barring         prosecutors           from        pursuing         such

proceedings against mentally defective defendants.                                See id.           As

the    Supreme       Court       has    explained,          “a     person       whose      mental

condition is such that he lacks the capacity to understand the

                                                22
nature and object of the proceedings against him, to consult

with counsel, and to assist in preparing his defense may not be

subject to a trial.”        See Drope v. Missouri, 420 U.S. 162, 171-

72 (1975).      Section 4241 is thus a codification of this well-

settled proposition.

       The divergent purposes of § 4241 and § 4248 also illustrate

that   the   Dismissal   Order’s   approach     to    the    civil   commitment

process would prove unworkable.           Section 4241 does not provide

for a commitment on the basis of the criteria of § 4248 — that

is, based on a prisoner’s sexual dangerousness.                 Rather, § 4241

authorizes a trial court to order a “hearing to determine the

mental competency of the defendant,” where there is reasonable

cause to believe that he is unable to understand and participate

in criminal proceedings pending against him.                § 4241(a).   If the

court, after conducting a § 4241 competency hearing, finds by a

preponderance    of   the   evidence     that   the   defendant      lacks   the

requisite mental competency, he is committed to custody pending

improvement of his mental condition or further proceedings.                  See

§ 4241(d).

       Nevertheless, this record offers no basis for concluding

that any of these Respondents are also defendants in a federal

court, or that any are suffering from a mental disease or defect

rendering him or them mentally incompetent within the meaning of

§ 4241.      More specifically, there have been no allegations or

                                    23
showings that any of the Respondents are “unable to understand

the nature and consequences of the proceedings against [them] or

to assist properly in [their] defense.”              § 4241(a).       Rather, the

Respondents are simply certified as sexually dangerous persons —

under the first category of eligible individuals (prisoners in

the custody of the BOP) — within the meaning of § 4248.                        As a

result, it is not at all apparent that any of the Respondents,

if released, would be subject to commitment under § 4241, as

there would then be no “proceedings” pending against any of them

— at least until some effort to modify or revoke a term of

supervised     release   has     been    initiated.       As   such,     a     civil

commitment under § 4241 is not a proper first step in § 4248

commitment      proceedings          against    prisoners      such     as      the

Respondents.

                                         C.

     Finally, the district court erred by invoking the canon of

constitutional avoidance to justify creation of its alternative

commitment     scheme.        This    canon    has   no   application     to    the

construction of a statute in a manner that is incompatible with

its plain terms.         See Boumediene v. Bush, 553 U.S. 723, 787

(2008) (“The canon of constitutional avoidance does not supplant

traditional     modes    of    statutory       interpretation.”).        As      the

Supreme Court has recognized,



                                         24
        [s]tatutes should be construed to avoid constitutional
        questions, but this interpretive canon is not a
        license for the judiciary to rewrite language enacted
        by the legislature.      Any other conclusion, while
        purporting to be an exercise in judicial restraint,
        would trench upon the legislative powers vested in
        Congress by Art. I, § 1 of the Constitution.

Salinas v. United States, 522 U.S. 52, 60-61 (1997) (internal

quotation marks and citations omitted).               As we have explained,

§ 4248 is not ambiguous with respect to how civil commitment

proceedings are to be initiated against federal prisoners whom

the government believes to be sexually dangerous.                 Thus, the

canon        of   constitutional   avoidance   does   not   countenance   the

Dismissal Order’s alternative commitment scheme. 10




        10
        Although the Respondents vigorously defend the Dismissal
Order’s alternative commitment scheme, they present another
rationale for an affirmance thereof.    The Respondents contend,
in the alternative, that we should affirm the district court
because of readily apparent due process violations that have
resulted from the Respondents’ prolonged detentions without
being accorded merits hearings on their § 4248 certifications.
This contention, of course, is being presented for the first
time on appeal. Because the district court did not address and
rule on this due process argument, we decline to resolve it.

       Nevertheless, it bears repeating that the Respondents
remain in prison absent any judicial determination that they yet
belong there.     Indeed, if not for the legal uncertainties
attendant to the civil commitment provisions of the Adam Walsh
Act and the continuing detention of the Respondents thereby
occasioned, some of them might well by now have completed their
terms of supervised release and satisfied their obligations to
society.   We trust that the proceedings on remand will move
forward with dispatch and not further exacerbate the grim delay
in achieving resolution of these matters.



                                       25
                            IV.

    Pursuant to the foregoing, we vacate the Dismissal Order

and remand for such other and further proceedings as may be

appropriate.

                                         VACATED AND REMANDED




                            26
WYNN, Circuit Judge, concurring:

       I    concur   in     the        majority’s          opinion,        which       applies

unambiguous statutory language to conclude that proceeding under

18 U.S.C. § 4248 is the proper way for the government to pursue

the civil commitment of an allegedly sexually dangerous person

who is the custody of the Bureau of Prisons, even when that

person is serving a prison sentence that includes a period of

supervised release.           I write separately to emphasize what is

touched upon in footnote 10 of the majority opinion - that the

application of 18 U.S.C. § 4248 in these cases raises serious

constitutional questions related to the due process rights of

Respondents.         Specifically, it is troubling that Respondents

have       been   detained,       in        some     cases    for      years,          without

governmental      justification          for       their    detention       at     a   merits

hearing on their § 4248 certifications.

       To    be   sure,     our        courts       have     yet      to     address        the

constitutionality of prolonged detention pursuant to the Adam

Walsh Act prior to a hearing on the merits.                                However, many

courts have held that the due process rights guaranteed by the

Constitution      entitle     one      to    a   final     determination         as    to   the

validity of his confinement within a reasonable period of time.

       For instance, in In re Barnard, 455 F.2d 1370 (D.C. Cir.

1971), the court, in reviewing a District of Columbia statute

providing for emergency involuntary commitment, stated “where a

                                              27
person, said to be mentally ill and dangerous, is involuntarily

detained, he must be given a hearing within a reasonable time to

test whether the confinement is based upon probable cause.”                           Id.

at    1374.       Indeed,     even    where     emergency        detention      can   be

justified on the basis of a potential danger resulting from the

detainee’s mental condition, the need remains to justify the

detention without substantial delay.

      In Logan v. Arafeh, 346 F. Supp. 1265 (D. Conn. 1972),

aff'd sum. sub nom. Briggs v. Arafeh, 411 U.S. 911 (1973), the

court considered the constitutionality of a Connecticut statute

under which a patient could be involuntarily committed for no

longer than forty-five days without a judicial determination of

the validity of his confinement.                 Id. at 1267-68.           The court

stated   “[t]he        emergency    commitment      to    a    hospital   for     mental

illness on a temporary basis of a person on the finding of a

physician that he is a danger to himself or others without prior

notice      and   hearing    does    not   offend        the   due   process      clause

provided there is available to him an adequate means of testing

the validity of his confinement within a reasonable period of

time.”      Id. at 1268; see also Coll v. Hyland, 411 F. Supp. 905,

910   (D.     N.J.     1976)(concluding     that    in     the   context     of    civil

commitment,       “a    hearing    held    within    a    reasonable      time    after

confinement begins is an acceptable means of supplying requisite

due process.”).

                                           28
      Similarly,        in     Lynch       v.    Baxley,      386    F.Supp.       378,    387-88

(M.D.   Ala.      1974),       the    court       struck      down    Alabama’s       emergency

involuntary commitment statute and stated:

      Since the interests of these emergency detainees in
      retaining their liberty and avoiding unwarranted civil
      commitment are comparable to the interests of persons
      accused of criminal offenses in retaining their
      liberty and avoiding wrongful incarceration, the
      burden on the state to justify the emergency detention
      must be similarly heavy.     As one means of assuring
      that persons accused of crimes are not held in custody
      and involuntarily deprived of their liberty without a
      showing of probable cause to believe that they have
      committed   punishable   offenses,  it   is   generally
      required that such persons be brought before a
      judicial office without unnecessary delay after arrest
      to determine whether they are being detained on
      probable cause. Likewise, in the situation here, where
      a person said to be mentally ill and dangerous is
      involuntarily detained, he must be given a hearing
      within a reasonable time to test whether the detention
      is   based  upon   probable   cause to   believe   that
      confinement is necessary under constitutionally proper
      standards for commitment.

Id. at 387-88 (citations omitted).

      Most       assuredly,          the    lengthy          detention       of     Respondents

without     a    reasonably      prompt          adjudication        of    the     government’s

petitions       for    their     commitment            was   one     of    the    “due    process

concerns”        that        motivated          the     district          court’s     statutory

interpretation.          See    United          States       v.    Broncheau,       No.    06-HC-

2219(L),        2010    WL    4484635       at    *     9    (E.D.N.C.      Oct.     29,   2010)

(“[S]ection        4248      simply        does       not    afford       any     respondent    a

reasonable time in which to adjudicate the government’s petition

for   his    commitment.”).           But,       as    the    majority      recognizes,        the

                                                  29
district court stopped short of making a constitutional ruling.

Instead, without finding any ambiguity in the language of the

statute, the district court sought to remedy a constitutional

problem   through    an    unsupportable    reading      of     the   statutory

scheme.      That error compels us to vacate the district court’s

order and remand.

     Additionally, as pointed out by the majority, while the

constitutional due process concerns may persist, they were not

identified by Respondents, who failed to raise an as-applied due

process challenge to the statute. *         This itself counsels us to

avoid passing on the issue in the first instance.                See Singleton

v. Wulff, 428 U.S. 106, 120-21 (1976) (recognizing the general

rule that a court of appeals will not consider an issue raised

for the first time on appeal).             I recognize that “there are

circumstances in which a federal appellate court is justified in

resolving an issue not passed on below, as where the proper

resolution    is    beyond   any   doubt    or   where        injustice   might

otherwise result.”        Id. at 121.      Yet, I cannot conclude that

     *
        The only procedural due process concerns raised by
Respondents, such as the contentions that the right to a speedy
trial was violated or that notice was inadequate, were
explicitly tied to the argument that § 4248 proceedings,
although nominally civil, were actually criminal. This line of
argument was foreclosed when, in Comstock II, we reiterated that
§ 4248 is in fact a civil commitment statute. See 627 F.3d at
520 (“[T]he purpose and structure of the commitment process
render it unlike any criminal prosecution.”).



                                    30
such circumstances are present in this case as would warrant

departure from well-established principles of judicial review.




                               31
