           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                       No. 14-10274
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
SEALED APPELLEE,                                                             July 10, 2015
                                                                            Lyle W. Cayce
               Movant - Appellee                                                 Clerk

v.

SEALED APPELLANT,

               Respondent - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:13-CV-953


Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
       In a challenge to being civilly committed pursuant to 18 U.S.C. § 4245,
Sealed Appellant, a federal prisoner, claims the statutorily required
preponderance-of-the-evidence standard for such commitments violates the
Fifth Amendment’s Due Process Clause, which, she contends, requires clear-
and-convincing evidence. AFFIRMED.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
                                 No. 14-10274

                                       I.
      Appellant is serving a 216-month sentence in a federal medical center in
Carswell, Texas. Transferred to Carswell after exhibiting mental defects, she
initially responded positively to medication, but later regressed after refusing
treatment. Carswell staff evaluated her and concluded her behavior imperiled
her health.
      After the Government filed in district court a certificate of mental
disease or defect, and requested a hearing to determine Appellant’s mental-
health status, see 18 U.S.C. § 4245(a), (d), the district court appointed an
attorney to represent her. During the hearing, Appellee submitted evidence,
including testimony by Carswell’s chief of psychiatry (chief), to show Appellant
suffered from a mental illness. Appellant presented no evidence and stipulated
to the admission of the documentary evidence, including the mental-health
evaluation the chief had performed on Appellant; Appellant expressly did not
question the chief’s being qualified to present the opinions contained in that
evaluation.   Finding, by the statutorily required preponderance of the
evidence, that Appellant suffered from a mental disease or defect and needed
treatment, the court ordered her civilly committed.
                                      II.
      In Addington v. Texas, 441 U.S. 418, 432–33 (1979), the Court held the
Fourteenth Amendment’s Due Process Clause requires a clear-and-convincing
evidentiary standard for the indefinite commitment of a non-incarcerated
person with a mental illness. The next year, in Vitek v. Jones, 445 U.S. 480,
491–94 (1980), the Court held “involuntary commitment to a mental hospital
is not within the range of conditions of confinement to which a prison sentence
subjects an individual” and that such deprivation “requires procedural
protections”. And, in Jones v. United States, 463 U.S. 354, 366–68 (1983), the


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Court upheld an indefinite civil commitment, based on a preponderance of the
evidence, for a defendant found not guilty by reason of insanity. Thereafter,
Congress codified different evidentiary standards in its civil-commitment
statutes: §§ 4245 (preponderance of the evidence) and 4246 (clear-and-
convincing evidence for civil commitments of persons whose sentences are
about to expire). See Pub. L. No. 98–473, 98 Stat. 1837 (1984).
      Appellant relies on these Supreme Court opinions in claiming the more
demanding,    clear-and-convincing-evidence     standard    is   constitutionally
required in § 4245 actions. Along that line, and for the § 4245 proceeding at
hand, the Government, upon the request of the director of the facility in which
an inmate is located, may move in federal court for a hearing on an inmate’s
mental condition. 18 U.S.C. § 4245(a). The court “shall grant the motion if
there is reasonable cause to believe that the person may presently be suffering
from a mental disease or defect for the treatment of which he is in need of
custody for care or treatment in a suitable facility”. Id. The court may order
a psychiatric or psychological examination of the inmate, and he shall be
represented by counsel at the hearing if he is financially unable to obtain
adequate representation. Id. §§ 4245(b)-(c), 4247(d). Furthermore, the inmate
“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”. Id. § 4247(d). “If, after the hearing, the court finds by
a preponderance of the evidence that the person is presently suffering from a
mental disease or defect . . . , the court shall commit the person to the custody
of the Attorney General”. Id. § 4245(d) (emphasis added).
      As noted supra, this regime differs from the civil-commitment
requirements in § 4246, which is not at issue here and which requires showing,
by clear-and-convincing evidence, that a person in the custody of the Bureau


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                                 No. 14-10274

of Prisons whose sentence is about to expire suffers from a mental disease or
defect. Furthermore, although Appellant, in her opening brief here, challenged
the civil-commitment order on the basis it could be interpreted as authorizing
forced medication, the Government responded that it did not request that
procedure. Accordingly, in her reply brief, Appellant abandoned that issue.
      For the reasons that follow, and because the evidence before the district
court satisfies both the preponderance and clear-and-convincing evidentiary
standards, the constitutionally required standard need not be decided. See
Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J.,
concurring) (courts should avoid deciding constitutional questions where
possible); see also Sealed Appellee 1 v. Sealed Appellant 1, 767 F.3d 418, 424–
25 (5th Cir. 2013) (pretermitting the constitutional issue regarding the
required evidentiary standard in a § 4245 action where the evidence satisfied
either standard).
      For the evidentiary challenge to § 4245, the parties assert the standard
of review is de novo because Appellant raises a constitutional question
regarding the required evidentiary standard, and cite Sealed Appellee 1
(involving a challenge to statutory interpretation) for support.       However,
because we need not reach the constitutional question and affirm the order
under either standard based on the district court’s findings of fact and
conclusions of law, those findings are reviewed for clear error; the conclusions,
de novo. See, e.g., United States v. Dennis, 189 F.3d 466, 1999 WL 511352, at
*1 (5th Cir. 22 June 1999) (unpublished). In that regard, “application of the
incorrect burden of proof by the district court is subject to harmless error
review”. Sealed Appellee 1, 767 F.3d at 424. “Use of the preponderance burden
of proof when clear and convincing evidence is mandated may require reversal,
but it may be harmless error when the evidence is substantial and undisputed”


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and the challenger fails to show it is reasonably likely her substantial rights
were affected by the error. Id. at 424–25. A preponderance of the evidence
“means that the fact [to be] proved is more likely than not. ‘Clear and
convincing’ is a higher standard and requires a high probability of success”.
Id. at 424 n.26 (alterations in original, citation, and internal quotation marks
omitted).
      Concerning the district court’s findings, Appellant presents two
challenges: according to the chief, her condition improved when she faithfully
took her medication; and, according to Appellant, she does not suffer from a
mental illness. The evidence, however, overwhelmingly supports affirming the
civil-commitment order.
      The chief testified, uncontradicted by Appellant, that: she has a mental
condition; although Appellant responded well to psychiatric medication that
resolved many of her symptoms, Carswell staff twice had to employ “calculated
uses of force to give her medication”; and Appellant required commitment
because of a “never ending” history of recidivism—her symptoms would abate
while on medication, but she inevitably would stop taking the medication at
some point, and her symptoms would return. During the competency hearing,
Appellant denied suffering from a mental condition, contrary to the chief’s
testimony; but, the chief testified it is “very unlikely” Appellant would “gain
. . . insight” into her condition “with continued treatment”.
      The mental-health evaluation explained how Appellant would, inter alia:
“ritualistically throw[] much of her food in the toilet [thereby] adversely
impacting her health and obstructing the plumbing system”; “refuse[] to
shower”; and hoard and smear urine around her cell. The evaluation states
Appellant’s health was suffering as a result of:                poor food intake;
noncompliance with medical assessments and treatment of a severe and


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worsening iron deficiency (anemia); and failure to engage in basic hygienic
practices.   This uncontroverted evidence clearly and convincingly shows
Appellant suffers from a mental condition.
      Although the chief noted Appellant “functions very well” on medication
and “doesn’t present as someone who is suffering from . . . a mental condition”,
the parallel facts in Sealed Appellee 1, in which this court found clear-and-
convincing evidence supporting civil commitment, show the court did not err
in ordering Appellant civilly committed.     In Sealed Appellee 1, appellant:
denied she had any medical problems despite being diagnosed with and treated
for several; refused to take medication due to a mental condition; believed
psychotropic drug treatment caused her medical problems; refused necessary
treatment when her mental illness was not being treated; and was in grave
physical danger without treatment. 767 F.3d at 425. For the same and similar
reasons, the evidence at hand clearly and convincingly supports the civil-
commitment order at issue.
                                      III.
      For the foregoing reasons, the civil-commitment order is AFFIRMED.




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