                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 13-6326


UNITED STATES OF AMERICA,

                  Petitioner - Appellee,

           v.

RICHARD SAVAGE,

                  Respondent - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Graham C. Mullen,
Senior District Judge. (5:08-hc-02182-MU-JG)


Argued:   October 30, 2013                  Decided:   December 10, 2013


Before WILKINSON, AGEE, and KEENAN, Circuit Judges.


Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Wilkinson and Judge Keenan concur.


ARGUED: Jeffrey William Gillette, GILLETTE LAW FIRM, PLLC,
Raleigh, North Carolina, for Appellant. Michael Bredenberg, FMC
BUTNER, FEDERAL MEDICAL CENTER, Butner, North Carolina, for
Appellee.   ON BRIEF: Thomas G. Walker, United States Attorney,
R.A. Renfer, Jr., Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
AGEE, Circuit Judge:

       Richard    Savage      appeals    from         the    judgment    of     the   United

States District Court for the Eastern District of North Carolina

civilly committing him as a “sexually dangerous person” under 18

U.S.C. § 4248. Savage contends that the district court lacked

jurisdiction      under      this    statute          because,    as     a    District     of

Columbia offender, he was not “in the custody of the Bureau of

Prisons” (“BOP”) as required by § 4248(a). He separately argues

that   the     district      court   erred       in    committing       him     because   he

should have      been     released      to   the      District     of    Columbia       under

§ 4248(d).      For    the     reasons   set       forth      below,     we    affirm     the

district court’s judgment.



                  I.     Factual and Procedural Background

       In 2006, Savage, who has a history of repeated sexual and

nonsexual       offenses,        pled    guilty             and   was        convicted     of

distributing heroin in violation of the District of Columbia

Code (“D.C. Code”). Savage served his thirty-six-month sentence

for that offense in the BOP facility in Butner, North Carolina.

Before    his    scheduled        release        date       for   that       offense,     the

Government      timely    certified      Savage         as    a   “sexually      dangerous

person” under § 4248(a) on December 18, 2008. The next day, the

district court stayed the civil commitment proceedings, noting

that     had    been     the     consistent           practice     in        other    § 4248

                                             2
proceedings brought while appeals were pending in United States

v. Comstock, 507 F. Supp. 2d 522 (E.D.N.C. 2007), aff’d, 551

F.3d 274 (4th Cir. 2009), and rev’d and remanded, 560 U.S. 126

(2010), on remand, rev’d and remanded, 627 F.3d 513 (4th Cir.

2010).

    Unaware     of    the    pending    civil    commitment        proceedings    in

April 2010, the District of Columbia Court Services and Offender

Supervision Agency (“CSOSA”) inquired as to Savage’s anticipated

release into the District of Columbia upon the completion of his

criminal   sentence.        When    CSOSA    contacted    the      BOP   regarding

Savage’s status, the BOP explained that Savage had been civilly

committed as a sexually dangerous person and therefore would not

be released. 1 After communicating with the BOP,                     CSOSA closed

Savage’s case.

    Once    the      stay   of     proceedings   related      to    Comstock      was

lifted, Savage moved to dismiss the § 4248 proceedings against

him and sought immediate release. He argued that the district

court lacked jurisdiction over him because, as a District of

Columbia offender, he was not “in the custody” of the BOP for

purposes   of   § 4248.     Citing     our   decision    in   United     States   v.

Joshua, 607 F.3d 379 (4th Cir. 2010), Savage argued that the

D.C. Code, like the Uniform Code of Military Justice (“UCMJ”) in

    1
          In fact, Savage had not yet been civilly committed but
rather was in the initial stages of that process.


                                         3
Joshua, is a separate body of law from Title 18 of the U.S.

Code. Consequently, Savage posited that the BOP maintained only

physical custody over him, not the legal custody required by

§ 4248    to   adjudicate   a   civil    commitment.     The   district    court

denied the motion, concluding that “[t]he statutory framework of

both the D.C. Code and the federal code endows the [BOP] with

the legal custody, not merely physical custody, over D.C. Code

offenders.” United States v. Savage, No. 5:08-HC-2182-FL, 2011

U.S. Dist. LEXIS 112959, at *4 (E.D.N.C. Sept. 30, 2011).

     At     the   subsequent     commitment        hearing,    the   Government

presented      evidence     detailing        Savage’s   history      of   sexual

offenses. The district court concluded that Savage satisfied the

§ 4248 criteria and ordered him to be civilly committed as a

sexually dangerous person. 2      Savage noted a timely appeal, and we

have jurisdiction pursuant 28 U.S.C. § 1291.



                                II.     Analysis

     The Adam Walsh Child Protection and Safety Act, codified at

18 U.S.C. § 4248, authorizes the civil commitment of “sexually

dangerous person[s].” In pertinent part, § 4248 provides that

“[i]n relation to a person who is in the custody of the Bureau


     2
       Savage does not challenge the district court’s findings
that he satisfied the non-jurisdictional criteria for commitment
under § 4248.


                                         4
of Prisons, . . . the Attorney General . . . may certify that

the person is a sexually dangerous person. . . . The court shall

order a hearing to determine whether the person is a sexually

dangerous person.” 18 U.S.C. § 4248(a) (emphasis added). 3 The

statute further provides that

     [i]f, after the hearing, the court finds by clear and
     convincing evidence that the person is a sexually
     dangerous person, the court shall commit the person to
     the custody of the Attorney General. The Attorney
     General shall release the person to the appropriate
     official of the State in which the person is domiciled
     or was tried if such State will assume responsibility
     for his custody, care, and treatment.

Id. § 4248(d) (emphasis added).

     In this appeal, Savage raises two issues. First, he argues

that the district court erred in concluding that, for purposes

of § 4248(a), Savage was “in the custody of” the BOP. Second,

Savage contends that the district court erred in committing him

because § 4248(d) instead required him to be released to the

District of Columbia. Both issues are questions of statutory

interpretation—“quintessential    question[s]   of   law,   which   we



     3
          Section 4248(a) also authorizes the Attorney General
to certify as a “sexually dangerous person” anyone “who has been
committed to the custody of the Attorney General pursuant to
section 4241(d), or against whom all criminal charges have been
dismissed solely for reasons relating to the mental condition of
the person.” 18 U.S.C. § 4248(a). The BOP does not argue that
Savage falls into either of these categories. We agree those
provisions do not apply in this case and consider only whether
Savage was “in the custody of the Bureau of Prisons.”


                                  5
review de novo.” Stephens ex rel. R.E. v. Astrue, 565 F.3d 131,

137 (4th Cir. 2009).



                                               A.

       We consider first Savage’s argument that the court lacked

the jurisdiction under § 4248 to civilly commit him because he

was    not    “in    the   custody        of   the     [BOP].”      In    essence,           Savage

contends that, as a District of Columbia offender, he was not

“in the custody” of the BOP for purposes of § 4248 even though

he was serving his term of confinement in the BOP.

       Savage       proposes       three       basic      reasons        to        support    this

conclusion.         First, he argues that, having been convicted under

the D.C. Code, he is not subject to § 4248 because that statute

applies only to individuals in the federal criminal process.

Second, Savage contends that the Attorney General and the BOP

are    not     the    same        authority         for    purposes           of     determining

“custody,” and that the D.C. Code transfers convicted offenders

into    the     custody      of     the    Attorney        General        following          their

sentencing. Third, and finally, he argues that any control that

the    BOP    exercises      over     D.C.      prisoners      is    not           “custody”    as

contemplated by § 4248. For these reasons, Savage posits that

his case is “virtually indistinguishable” from Joshua and he,

too, should not be subject to commitment under § 4248 because

the district court lacked the jurisdiction to do so.

                                                6
     Before addressing these arguments, we first summarize our

holding    in    Joshua,     where   we     also       addressed   the    meaning     of

“custody” in the context of § 4248.                     In that case, an ex-Army

officer had been convicted by courts-martial of violations of

the UCMJ and was serving his term of imprisonment in a BOP

facility under a “Memorandum of Agreement” entered into under

the statutory authority of UCMJ Article 58. Joshua, 607 F.3d at

381–82. The Memorandum of Agreement stated that the BOP would

house     up    to    500    U.S.    Army       prisoners,       who     were    deemed

“contractual boarders.” Id. at 381. By its terms, the Memorandum

of   Agreement       provided     that     “military       prisoners      within      BOP

facilities      [would]     remain   ‘in     permanent        custody    of    the   U.S.

Army,’     which     ‘retain[ed]     clemency          authority.’”      Id.    at    382

(quoting the Memorandum Agreement). This contractual custody was

statutorily authorized only as to a prisoner’s “confinement,”

not his legal status for § 4248 purposes: “UCMJ Article 58’s

language       authorizing       Joshua’s       ‘confinement’         within     a   BOP

facility never transferred legal custody away from the Army.”

Id. at 389.

     We     determined      in    Joshua        that    the    term     “custody”     in

§ 4248(a) means not simply physical custody, but legal custody—

the “ultimate legal authority” over the offender. Id. at 388.

And we held that the provisions of the UCMJ, reflected in the

terms of the Memorandum of Agreement, established that the BOP

                                            7
did not have legal, but only physical, custody over Joshua.                             The

ultimate legal authority over him always remained with the Army

regardless of Joshua’s place of physical residence. Id. at 388-

90. Because the BOP lacked legal custody over Joshua, there was

no jurisdictional authority for civil commitment under § 4248,

and     we     affirmed       the        district    court’s     dismissal         of   the

Government’s § 4248 petition. Id. at 391.

      We find the case at bar distinguishable from Joshua. Unlike

Joshua, this case involves the civilian District of Columbia

criminal justice system, not the military system. More to the

point,        District        of     Columbia       offenders,     unlike      military

offenders,       are     placed       in     the    BOP’s   custody     by     statutory

authority, not as a matter of convenience. Section 24-201.26 of

the D.C. Code provides that “[a]ll prisoners convicted in the

District of Columbia for any offense . . . shall be committed

. . .    to    the    custody       of    the   Attorney    General    of    the    United

States or his authorized representative, who shall designate the

places of confinements where the sentences of all such persons

shall be served.” D.C. Code § 24-201.26 (emphasis added). The

D.C. Code refers to “custody” as opposed to mere “confinement,”

the operative statutory language at issue in Joshua. See Joshua,

607     F.3d     at     389        (“By    contrast,    Article       58’s     provision

authorizing      a     military       offender’s     confinement      within    the     BOP

looks much different: ‘a sentence of confinement adjudged by a

                                                8
court-marital or other military tribunal . . . may be carried

into execution by confinement in . . . any penal or correctional

institution under the control of the United States . . . .’”

(quoting 10 U.S.C. §858(a))). While “confinement” suggests mere

physical   custody,        “committed       to      the   custody,”     by    comparison,

reflects     a    specific        status    beyond        the   place   of    residence.

Similarly,       while     D.C.    Code     §       24-201.26    expressly     transfers

“custody,”       the     Memorandum    of       Agreement       in   Joshua    expressly

provided that the U.S. Army retained “custody” of him.

     In determining what type of “custody” D.C. Code § 24-201.26

intends, we find Frazier v. United States, 339 F.2d 745 (D.C.

Cir. 1964), persuasive. 4 In Frazier, the United States Court of

Appeals for the District of Columbia Circuit determined from the

identical language in the predecessor statute of Section 24-

201.26 that “it is clear that the ‘custody’ intended is not

limited to actual physical custody, but denotes a type of legal

custody which remains in the Attorney General even though the

prisoner is assigned to an institution over which the Department

     4
        We further note that because Frazier pre-dates the
creation of the District of Columbia Court of Appeals, it would
ordinarily be afforded the deference due a “state” court
interpreting a “state” statute.    See Ortberg v. Goldman Sachs
Group, 64 A.3d 158, 170 n.2 (D.C. 2013) (“Decisions of the
United States Court of Appeals for the District of Columbia
Circuit issued before February 1, 1971, are binding on this
court.”). As noted, however, Frazier examined the predecessor
statute of § 24-201.26, though that language was the same.   As
such, its interpretation is highly persuasive.


                                                9
of Justice has no control.” Id. at 746. The appellant, Frazier,

had argued that he was not subject to the Federal Escape Act, 18

U.S.C.   § 751,     because       he    had    been     transferred        to    a   mental

facility prior to his escape, and the Attorney General’s custody

had ended upon that transfer. Frazier, 339 F.2d at 746–47. The

court,   however,       concluded      that      “the   custody      of    the   Attorney

General is continuous as he discharges his responsibility to

transfer a prisoner ‘from one institution to another . . . for

the well-being of the prisoner.’” Id. at 747 (citation omitted).

      Congress’ enactment of the National Capital Revitalization

and Self Government Improvement Act of 1997, 111 Stat. 251; Pub.

L. 105-33, (the “Revitalization Act”) confirms to us that D.C.

Code § 24-201.26 places D.C. offenders into the legal custody of

the Attorney General for the duration of his sentence, no matter

where    the     prisoner    may       be     housed.    The     Revitalization         Act

effectively       closed    the    District        of    Columbia         Department      of

Corrections and “transferred [all D.C. felons] to a penal or

correctional facility operated or contracted for by the Bureau

of   Prisons.”       D.C.     Code       § 24-101(b).          Not     only      did    the

Revitalization Act place D.C. offenders in the physical custody

of the BOP, but by further “subject[ing] [D.C. offenders] to any

law or regulation applicable to persons committed for violations

of   laws   of    the    United    States        consistent      with      the   sentence

imposed,    and    [by     designating]          the    Bureau    of      Prisons      . . .

                                            10
responsible          for    the      custody,        care,    subsistence,        education,

treatment and training of such persons,” the Act also vested

legal custody in the BOP. Id. (emphasis added); see also, e.g.,

Chase v. Pub. Defender Serv., 956 A.2d 67, 72 & n.7 (D.C. 2008)

(explaining that “[w]hen it enacted the Revitalization Act in

1997,      Congress        shifted    control        over    several      criminal     justice

functions       from        the    District       of        Columbia      to   the    federal

government,” including the “transfer[] [of] sentenced felons to

the       custody      of     the      federal         Bureau        of    Prisons”).       The

Revitalization Act was, by its plain terms, not a contractual

provision for confinement, but the full vesting of all aspects

of custody in the BOP over D.C. offenders.

          Contrary    to     Savage’s       contention,         we     conclude      that   for

purposes of § 4248, there is no substantive difference between

vesting legal custody in the Attorney General and legal custody

in the BOP. D.C. Code § 24-201.26 transfers custody to “the

Attorney       General        of     the    United      States       or    his    authorized

representative, who shall designate the places of confinements

where the sentences of all such persons shall be served.” D.C.

Code       § 24-201.26        (emphasis         added).       Moreover,        Congress     has

provided that “[t]he Bureau of Prisons shall be in [the] charge

of    a    director        appointed       by   and    serving       directly     under     the

Attorney General.” 18 U.S.C. § 4041 (emphasis added); see also

id. § 4042 (stating that “[t]he Bureau of Prisons, under the

                                                11
direction of the Attorney General, shall” perform its duties).

Under these clearly delineated relationships, the BOP operates

at     the    Attorney         General’s         direction,       and   serves       as    that

officer’s designee.              The Attorney General and the BOP are thus

equivalent entities for purposes of a § 4248 “custody” analysis.

       Since       the    passage      of    the      Revitalization       Act,      the       BOP

calculates         D.C.    offenders’            sentences    and       determines         their

release dates. Savage himself acknowledges that this calculation

is “[t]he most obvious expression of ultimate legal authority

over a prisoner.” (Opening Br. 21.) And while the BOP sentencing

manual       for   D.C.    offenders        is    separate    from      that   for    federal

offenders, the BOP compiled the D.C. offender’s manual in light

of the Revitalization Act’s instructions in order to fulfill

this    component         of    its    exercise        of   full     custody      over      D.C.

offenders.         See    generally      Federal       Bureau      of   Prisons,      5880.32

Change                          Notice                        1                       (2003),

http://www.bop.gov/policy/progstat/5880_032_CN01.pdf.                             The      BOP,

by creating and implementing the manual, is significantly more

active in the process than Savage portrays it to be. Because the

BOP    is     responsible         under      the      Revitalization       Act       for       the

calculation of sentences and the “custody, care, subsistence,

education,         treatment     and     training       of”   D.C.      offenders,        it    is




                                                 12
clear that the BOP, as the Attorney General’s representative,

exercises “ultimate legal authority” over D.C. offenders. 5

      For all the foregoing reasons, we hold that D.C. offenders

are in the legal custody of the BOP for purposes of § 4248. As

such,     we    conclude   that   the   district    court   did   not    err   in

determining that it had the jurisdictional authority to civilly

commit Savage as a “sexually dangerous person” under § 4248(a)

because he was in the legal custody of the BOP.



                                        B.

      Savage also argues that the district court erred in his

civil commitment because § 4248(d) instead required his release

“to   the      appropriate   State   . . .   if    that   State   will   assume

responsibility for his custody, care, and treatment.” 18 U.S.C.

§ 4248(d). Specifically, he contends that, as the District of

Columbia had expressed a willingness when CSOSA contacted the

BOP to coordinate his release plan, § 4248(d) required that he



      5
        Similarly, D.C. offenders are also not in the same
category as the detainee of the U.S. Immigration and Customs
Enforcement (“ICE”) in United States v. Hernandez-Arenado, 571
F.3d 662 (7th Cir. 2009), who was housed in a BOP facility and
whose custodial status for purposes of § 4248 was at issue.
ICE, as part of the Department of Homeland Security, housed
Hernandez-Arenado in a BOP facility for its convenience, but
“retain[ed] ultimate authority over him.” Id. at 667. Thus, as
in Joshua, there was no statutory transfer of legal custody of
Hernandez-Arenado from ICE to the BOP.


                                        13
be released to the District of Columbia. (Opening Br. 23–26.)

Savage, however, never made this argument in the district court.

      “[I]ssues raised for the first time on appeal are generally

not   considered   absent    exceptional      circumstances.”         Williams   v.

Prof’l Transp. Inc., 294 F.3d 607, 614 (4th Cir. 2002). The

underlying rationales for this rule are “respect for the lower

court, [avoiding] unfair surprise to the other party, and the

need for finality in litigation and conservation of judicial

resources.” Wheatley v. Wicomico Cnty., 390 F.3d 328, 335 (4th

Cir. 2004). Savage contends that he preserved this argument for

appeal on two occasions. We disagree.

      First,   Savage    points   to    a   section   of   his   Memorandum      in

Support of his Motion to Dismiss and Release, in which he argues

that “[a]pplication of 18 U.S.C. § 4248 to Respondent Savage

merely because of his physical presence in a BOP facility is

inconsistent    and     interferes     with   the   District     of    Columbia’s

ability to manage his reentry or ongoing confinement pursuant to

the D.C. Code.” (J.A. 41.) This statement, however, is not an

argument based on any statutory release mandate under § 4248(d).

Savage never referred to subsection (d) in this part of his

memorandum but asserted only a vague equitable argument that the

District of Columbia was better able to manage his reentry. This

contention is not an argument that the statute prohibited his



                                       14
commitment      under    §   4248(d)    as    a    matter     of    law,   as   he   now

contends on appeal.

     Second, Savage points to his closing argument during the

commitment hearing. (J.A. 297–303.) While Savage did reference

subsection (d) once, he again made only an equitable argument

that it was more appropriate for the District of Columbia to

treat him. He never argued that the court lacked the authority

to commit him under § 4248(d) because of a statutory requirement

that he be instead released to the District of Columbia. (Id. at

297.) This is a different argument from the one that Savage

presents on appeal: that he should not have been committed under

§ 4248    because       subsection     (d)    required        his   release     to   the

District of Columbia under the express terms of the statute.

     Savage has not argued that exceptional circumstances exist

that would compel us to consider an argument raised for the

first    time   in   this    appeal,    and       we   find   none.   Therefore,      we

conclude that Savage has waived his second argument by failing

to raise it in the district court. 6


     6
          Even if Savage had not waived this argument, and even
assuming arguendo that he could prove CSOSA’s willingness to
assume responsibility for his care, Savage’s argument would
still fail. Savage bases his argument on a misreading of
§ 4248(d), which provides that

          [i]f, after the hearing, the court finds by clear
     and convincing evidence that the person is a sexually
     dangerous person, the court shall commit the person to
(Continued)
                                         15
                          III.    Conclusion

     For the reasons stated above, we conclude that Savage, as a

D.C. offender, was “in the custody of” the BOP for purposes of

§ 4248   certification   as   a   “sexually    dangerous   person.”   We

further conclude that Savage waived the argument that § 4248(d)

required his release to the District of Columbia. We therefore

affirm the district court’s judgment.



                                                               AFFIRMED




     the custody of the Attorney General. The Attorney
     General shall release the person to the appropriate
     official of the State in which the person is domiciled
     or was tried if such State will assume responsibility
     for his custody, care, and treatment.

18 U.S.C. § 4248(d) (emphasis added). We do not address whether
CSOSA “will assume responsibility for [Savage’s] custody, care,
and treatment.” But even by the plain language of the statute,
the § 4248(d) provision for release to state officials applies
only after the district court has found at a § 4248 hearing that
the individual is a “sexually dangerous person.” Therefore,
§ 4248(d) applies only after the § 4248 hearing and commitment
determination.   Savage remains free to seek that course as it
relates to his future commitment, but § 4248(d) did not operate
to bar the § 4248 commitment process.


                                   16
