                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-6316


UNITED STATES OF AMERICA,

                 Petitioner - Appellee,

           v.

CORNELL M. TAYLOR,

                 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-02196-BR)


Argued:   January 29, 2013                 Decided:    March 5, 2013


Before WILKINSON, MOTZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Diana Helene Pereira, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.  Jennifer Dee
Dannels, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.   ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Joseph B. Gilbert, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant.     Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, David T. Huband, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Cornell M. Taylor (“Appellant”) appeals the district

court’s order continuing his civil commitment pursuant to 18

U.S.C. § 4246.        Appellant argues that the district court erred

in concluding he continues to suffer from a mental disease or

defect such that his release would create a substantial risk of

bodily    injury     to    another    person     or    serious     damage     to    the

property of another.            In so doing, Appellant asserts that his

recent good behavior justifies his release, offering only his

own   testimony      in    support.        The    evidence      presented     below,

including an expert report from Appellant’s treating physician

and a psychologist, testimony from the treating physician, and

an    additional     expert     report     authored      by    a   court-appointed

independent        physician,         convincingly            demonstrates         that

Appellant’s     continued       commitment       is    warranted.      For         these

reasons and as set forth below, we affirm.



                                          I.

           On   February        1,   2006,     the    District     Court    for     the

Central   District        of   Illinois   found       Appellant    incompetent       to

stand trial for the charge of threatening a federal official.

Thereafter,     on   July      10,   2006,     the    Illinois     district       court

ordered Appellant evaluated for civil commitment pursuant to 18



                                          3
U.S.C. § 4246. 1         On November 3, 2006, the Government then filed a

certificate of mental disease or defect and dangerousness in the

District Court for the Eastern District of North Carolina. 2                         On

January 9, 2007, the district court held a § 4246 hearing.                         Upon

finding by clear and convincing evidence that Appellant suffered

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, the

district court committed him under § 4246(d) in an order dated

January 10, 2007.




       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
       Pursuant to 18 U.S.C. § 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 court for
       the district in which the person is confined.

18 U.S.C. § 4246(a). Because Appellant was then-hospitalized at
the Mental Health Division at the Federal Medical Center in
Butler, North Carolina, the warden filed the certificate in the
District Court for the Eastern District of North Carolina.

                                             4
              On    September   27,    2007,    the       district    court     ordered

Appellant’s conditional release to reside at a community home

for   adults       in   Springfield,    Illinois. 3          The     district    court

ultimately revoked his release on April 7, 2008. 4                    Appellant was

then returned to the Federal Medical Center in Butner, North

Carolina (“Butner”).

              On March 28, 2011, mental health staff at Butner filed

an annual report with the district court in accordance with 18

U.S.C.    §    4247(e)(1)(B)       concerning       the     mental    condition     of

Appellant and the need for his continued commitment.                     The annual

report, authored by Dr. Robert G. Lucking, M.D., and Dr. Angela

Walden Weaver, Ph.D., indicated Appellant had been prescribed a

combination of drugs, including Haloperidol Decanoate (an anti-

psychotic     medication),      for    treatment      of     his     schizoaffective

disorder.          Against   the    advice     of     his     primary     clinician,

Appellant refused to take the Haloperidol Decanoate.                            Due to

Appellant’s refusal to take the prescribed medication necessary

to control his mental illness, the mental health staff concluded

      3
       Neither the briefs nor the record indicate the precise
grounds for Appellant’s conditional release.
      4
       The probation officer was informed that Appellant violated
the conditions of his release by returning to the community home
facility under the influence of alcohol and in possession of a
bottle of alcohol. In addition, the probation officer reported
experiencing problems supervising Appellant in the placement
facility.


                                         5
that        Appellant      was   not    suitable    for   conditional           release   and

recommended continued commitment.

                On    November     9,    2011,     Appellant     moved      the    district

court for a hearing to determine whether he still met criteria

for commitment under § 4246.                 The next day, the district court

set     a     hearing      for   February     6,    2012,   to    determine          whether

Appellant continued to meet the criteria for commitment.                                   In

connection with the hearing, the district court appointed an

independent mental health examiner to evaluate Appellant. 5                                The

independent examiner, Dr. Katayoun Tabrizi, M.D., completed a

forensic psychiatry report, which contained Appellant’s relevant

medical,       psychiatric,        and    social    background;        a    mental    health

diagnosis; and a risk assessment pursuant to § 4246.

                Dr. Tabrizi examined Appellant on January 12, 2012,

and diagnosed him as suffering from schizoaffective disorder,

bipolar type; alcohol abuse, in a controlled environment; and

adult        antisocial      behavior     (provisional).          She      reported       that

Appellant            was    then       presently      prescribed           anti-psychotic

medication for his mental illness but was refusing to take it.

She stated that Appellant showed limited insight into his mental

illness and need for treatment.                      Appellant’s symptoms, which


        5
       Appellant requested the appointment                        of       an   independent
psychiatrist in his November 9, 2011 motion.


                                              6
were active at the time of his evaluation, included irritable

affect, argumentativeness, and paranoia.                        Dr. Tabrizi further

reported        that    treatment    with    anti-psychotic       medication,    which

Appellant was refusing, is the only effective treatment for his

psychotic symptoms.

                 Dr.    Tabrizi    also   concluded     that    Appellant    exhibited

several risk factors shown to be associated with an increased

risk       of    violent/aggressive         behavior,      including    a    psychotic

mental illness with persecutory delusions, poor insight into his

mental illness, refusal of anti-psychotic medications, history

of alcohol abuse while subject to release conditions, history of

aggression and threats due to his psychiatric symptoms, history

of gun possession, inadequate social support, and an extensive

juvenile        and    criminal    history.       Based    on   these   factors,     Dr.

Tabrizi opined that as a result of Appellant’s mental disease or

defect, his release would create substantial risk for bodily

injury and damage to the property of another.                        She concluded,

“[f]or          as     long   as    [Appellant]       is    refusing        to   accept

antipsychotic medications, he is not a suitable candidate for

conditional release to a community-based program.”                      J.A. 44. 6




       6
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.


                                              7
            On February 6, 2012, the district court convened the

hearing to determine whether Appellant continued to meet the

criteria    for   commitment    under    §    4246.      Appellant’s       treating

psychiatrist, Dr. Lucking, testified that he had been treating

Appellant since his admission to Butner in 2006.                     Dr. Lucking

further    stated    that    Appellant       suffered    from     schizoaffective

disorder and was then demonstrating

     significant re-emergence of psychotic symptoms with
     evidence of paranoid delusional symptoms involving
     Judge   Britt,  myself,  his  attorney   Ms.   Pereira,
     thinking we’re conspiring to keep him locked up in
     this facility.     He has some significant anger and
     hostility and aggression, which I don't think you can
     attribute   specifically  to  either   or   [sic]   the
     affective or psychotic symptoms.     It’s probably a
     combination of both of them. So he’s angry, hostile,
     uncooperative.

J.A. 17.     He also opined that Appellant’s refusal to take his

prescribed medication had attributed to the reemergence of his

psychotic symptoms and “a progressive decline into psychosis.”

Id. 18.     Dr. Lucking further stated that Appellant had, in 2006,

threatened to kill himself and staff and engaged in aggressive

behavior    by    throwing   and   breaking     food     trays.      Dr.   Lucking

concluded    that,   without    medication,      he     expected    Appellant    to

decline into further psychosis and to engage in the behaviors he




                                         8
exhibited in 2006. 7         Appellant’s sole offer of support of his

motion was his own testimony.

            The district court concluded that Appellant continued

to meet criteria for care and treatment under § 4246 and ordered

Appellant’s continued commitment.

            Appellant now appeals that order, arguing the district

court’s    determination       supporting     his     continued     commitment

constitutes reversible error.



                                       II.

            We review the district court’s factual findings for

clear    error   and   its   legal    conclusions   de   novo.     See   United

States v. Cox, 964 F.2d 1431, 1433 (4th Cir. 1992) (“The trial

court’s   ruling   denying     [the    committed    person’s]    unconditional

release . . . is a factual determination that will be overturned

by this court only if clearly erroneous.”); United States v.

Hall, 664 F.3d 456, 462 (4th Cir. 2012) (“On appeal, we review




     7
       Dr. Tabrizi did not testify at the hearing, though Dr.
Lucking confirmed that she held the same view.     See J.A. 19
(“[Dr. Tabrizi’s] opinion was similar.       She believed that
[Appellant] met the criteria for commitment and should not be
released unless he was placed on treatment with an anti-
psychotic.”). Likewise, staff psychologist Angela Walden Waver,
Ph.D., did not testify but joined in the annual report with Dr.
Lucking.


                                        9
the district court’s factual findings for clear error and its

legal conclusions de novo.”).



                                        III.

                                         A.

            A    person    committed     under     §   4246   may,        through    his

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

determine       whether   he   should    be    released.            See    18   U.S.C.

§ 4247(h).       The court that ordered the commitment may discharge

the person 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 unconditional release would no longer

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

serious damage to property of another.”                  Id. § 4246(e).              The

committed person seeking discharge bears the burden of proving

that he has so recovered.         See United States v. Evanoff, 10 F.3d

559, 563 (8th Cir. 1993); Sealed Appellee v. Sealed Appellant,

665 F.3d 620, 623 n.4 (5th Cir. 2011). 8




     8
       See also United States v. Anderson, No. 97–6372, 1998 WL
372382, at *2 (4th Cir. May 19, 1998) (On a motion to discharge,
“the   Government   no  longer  bears  the  burden   of  proving
dangerousness.    Rather, [the committed person] must present a
preponderance of evidence proving his release ‘no longer
create[s] a substantial risk of bodily injury.’” (quoting 18
U.S.C. § 4246(e))).


                                        10
                                                  B.

               In this case, we conclude that the district court’s

findings      justifying          Appellant’s          continued    commitment         were    not

clearly erroneous.                First, the expert witnesses, through their

testimony and reports, offered concurring opinions establishing

that Appellant suffers from a severe mental illness, namely,

schizoaffective              disorder.            They      reported        that       Appellant

continued          to    manifest        active    symptoms        of    his     illness,      and

nothing       in    the      record      contradicts        the    expert      opinions       that

Appellant continued to suffer from a severe mental disease or

defect.       He offered no testimony other than his own to suggest

he had recovered from his illness.                           Accordingly, the district

court did not clearly err when it found that Appellant continued

to suffer from a mental disease or defect.

               Second,          the   totality         of   the     evidence         before    the

district court established that, in light of Appellant’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     her       opinion,       the       independent

psychiatrist,            Dr.    Tabrizi,        reported     that       Appellant      exhibited

several risk factors shown to be associated with an increased

risk     of    violent/aggressive               behavior,         including      a     psychotic

mental illness with persecutory delusions, poor insight into his

mental illness, refusal of anti-psychotic medications, history

                                                  11
of alcohol abuse while subject to release conditions, history of

aggression and threats due to his psychiatric symptoms, history

of gun possession, inadequate social support, and an extensive

juvenile and criminal history.

            Dr. Lucking testified that Appellant’s refusal to take

his prescribed medication during his current hospitalization has

attributed to the reemergence of his psychotic symptoms, which

Dr.    Lucking    expects     will    cause       Appellant      to     engage     in

threatening      and    aggressive      behavior       against        persons    and

property.         Dr.    Lucking     testified        concerning       Appellant’s

condition before he was medicated:

       [Appellant] threatened to kill himself and other staff
       members.   He engaged in specific aggressive behavior
       against property by breaking and throwing food trays.
       I think it’s only a limited period of time before we
       see the emergence of this behavior again.

J.A. 18-19.

            The factors presented by the experts are among those

typically     considered      by    mental       health    professionals         when

conducting risk assessments.            See, e.g., United States v. Cox,

964 F.2d 1431, 1433 (4th Cir. 1992); United States v. Ecker, 30

F.3d 966, 970 (8th Cir. 1994).                Thus, when considered in its

entirety,   the    evidence    before      the   district   court      established

that   Appellant’s      release    would     create   a   substantial     risk     of

bodily injury to another person or serious damage to property of

another.

                                        12
                Appellant responds that the opinions offered by Dr.

Lucking       and    the     opinions      contained          in    the   March      2011   Butner

annual report regarding Appellant’s risk of dangerousness are

speculative          in    nature,       and,     thus,       not    enough     to    support    a

finding of “substantial risk” under § 4246.                               He emphasizes that,

“since the annual report entered in October 2011, [he] has not

engaged in any physically aggressive behavior directed against

others or property.”                 Appellant’s Br. 11.                   The dangerousness

evaluation       and      determination,          however,          require    the    evaluators

and     the     district           court     to        consider       Appellant’s           “entire

behavioral          and    psychological           profile.”              United      States    v.

Williams, 299 F.3d 673, 677 (8th Cir. 2002); see also Cox, 964

F.2d at 1433.              Thus, the experts properly considered a broad

range of historical and clinical data, rather than a selected

event or narrowly defined characteristic or time period.                                        As

such,    the        length    of    time     since          Appellant’s       last    aggressive

behavior       is     merely       one     piece       of    data     among    the     array    of

information that is properly considered.

                As        detailed         above,        the        experts       involved      in

Appellant’s review considered a host of relevant factors that

convinced       them       Appellant       was     still       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 property of another.                         As such, the evidence cleared

                                                  13
the   statutory   hurdle   that     Appellant’s     release   presents   a

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

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

and the district court did not clearly err when it relied upon

the   uncontroverted    expert    testimony    to   find   that   Appellant

continues to satisfy the criteria for civil commitment under

§ 4246.



                                    IV.

           For the foregoing reasons, the district court’s order

is

                                                                  AFFIRMED.




                                    14
