                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-1872
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Gary Johnson,                           *
                                        * [UNPUBLISHED]
            Appellant.                  *
                                   ___________

                             Submitted: January 9, 2012
                                Filed: January 18, 2012
                                 ___________

Before MELLOY, ARNOLD, and SHEPHERD, Circuit Judges.
                           ___________

PER CURIAM.

       Gary Johnson appeals the district court’s1 order involuntarily committing him
under 18 U.S.C. §§ 4241 and 4246 to a mental health treatment unit within the United
States Medical Center for Prisoners (USMCFP). We affirm.




      1
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri, adopting the report and recommendations of the Honorable
James C. England, United States Magistrate Judge for the Western District of
Missouri.
       After being found incompetent and unable to be made competent to stand trial
for burglary charges, Johnson was temporarily committed under 18 U.S.C. 4241(d)
to the custody of the Attorney General and placed in the USMCFP for a risk
assessment to determine whether Johnson should be released. Under 18 U.S.C. §
4246, a person in the custody of the Bureau of Prisons who has been temporarily
committed under section 4241(d) will not be released if the court determines: 1) the
person presently suffers from a mental disease or defect; 2) the person’s release
would create a substantial risk of bodily injury to another person or serious damage
to the property of another; and 3) no available suitable state placement exists. 18
U.S.C. § 4246; United States v. LeClair, 338 F.3d 882, 884 (8th Cir. 2003).

       A risk assessment panel comprised of three members—one psychologist, one
psychiatrist, and one social worker—determined that Johnson suffered from a serious
mental illness and that his release would create a substantial risk of bodily injury to
others or serious damage to the property of another. Specifically, the panel found that
Johnson suffers from delusions, is not aware that he is delusional, and is paranoid.
The psychiatrist member of the risk assessment panel testified at a hearing before the
court that because Johnson’s delusions were paranoid, they created a risk of bodily
injury to others, specifically because Johnson’s delusions make him believe other
individuals are trying to harm him, which causes him great agitation. The psychiatrist
also testified Johnson’s risk of causing bodily injury to others was increased because
he had a history of significant drug and alcohol abuse.

       At the request of Johnson’s public defender, Johnson was evaluated by an
independent psychologist apart from the risk assessment panel, Dr. Kenneth Burstin.
Dr. Burstin also determined that Johnson was suffering from a mental disease. Dr.
Burstin could not rule out that Johnson’s release would present a risk of bodily harm
to others but concluded the risk presented by Johnson was not a substantial one, in
part because Johnson’s delusional beliefs did not present until after his arrest.



                                         -2-
       Johnson argues the court erred in finding there was clear and convincing
evidence that his release would present a substantial risk of bodily injury to himself
or others. Specifically, he relies on Dr. Burstin’s finding that the risk of his release
would not be substantial, that his delusions did not present until after his arrest, and
that he had behaved well and non-violently while committed. We review a district
court’s finding that a substantial risk of bodily injury exists for clear error. United
States v. LeClair, 338 F.3d 882, 885 (8th Cir. 2003).

       Johnson has done well while in treatment and has not been violent. However,
“[o]vert acts of violence are not required to prove” a substantial risk of bodily injury
to others. United States v. Williams, 299 F.3d 673, 677 (8th Cir. 2002). “[A] finding
of ‘substantial risk’ under § 4246 may be based on any activity that evinces a genuine
possibility of future harm to persons or property.” Jones v. United States, 463 U.S.
354, 364-65 (1983). In Williams, we noted that the defendant’s minimal history of
actual violence and “relatively problem-free incarceration” were insufficient to
establish that the defendant’s release would not pose a substantial risk of bodily
injury. 299 F.3d at 677.

       None of the professionals who evaluated Johnson believed his release would
not present a risk of bodily injury to others. Only one, Dr. Burstin, characterized this
risk as less than substantial. In addition to these professional reports, Johnson has a
lengthy criminal history including a conviction for aggravated assault and an
additional charge of assault. Additionally, he has a significant history of drug and
alcohol abuse. We have noted that the major factors in determining whether an
individual’s release presents a substantial risk of harm of bodily injury to others
include a history of inflicting bodily injury and a history of drug and alcohol use,
among others. United States v. Ecker, 30 F.3d 966, 970 (8th Cir. 1994). Thus, we
cannot say under these circumstances that the court clearly erred in determining that
Johnson’s release would pose a substantial risk of bodily injury to another person.



                                          -3-
       Under section 4246, in addition to finding that an individual to be committed
suffers from a mental disease and his release would present a substantial risk of
bodily injury to others, the court may not commit the individual unless no state
placement for the individual is available. 18 U.S.C. § 4246(d). Johnson argues that
the Government failed to prove that no state placement was available for him.

        Johnson was unwilling to release his medical records to the State of Tennessee,
where Johnson could potentially have been placed. The MCFP warden contacted the
State of Tennessee and learned it would not accept Johnson into placement without
his medical records. The Government submitted a certificate of the warden
conveying this information to the court. However, Johnson argues the MCFP had a
duty to pursue other alternatives for his state placement and that the Government
bears the burden of showing a state will not assume responsibility for him. We
determined in United States v. Wigren, 641 F.3d 944, 947 (8th Cir. 2011), that the
Government is not required to put on proof on the matter of state custody aside from
the initial certification by the warden because section 4146 “does not endow the
committed person with a judicially-enforceable ‘right’ to state custody that must be
adjudicated at the hearing.” 641 F.3d at 947. Johnson acknowledges in his brief that
Wigren forecloses his argument, however, he asserts his argument to preserve it
pending a possible positive outcome in the Wigren case. After Johnson filed his
brief, the Supreme Court denied certiorari. See United States v. Wigren, 132 S. Ct.
561 (2011). Under Wigren, the warden’s certification was all that was necessary for
the court’s determination that state placement was unavailable for Johnson.

      For these reasons, we affirm the district court’s order committing Johnson to
custody.

                       ______________________________




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