                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
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                                   No. 03-2785
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United States of America,                  *
                                           *
             Appellee,                     *
                                           *      Appeal from the United States
      v.                                   *      District Court for the
                                           *      District of South Dakota.
David William Dorsch,                      *
                                           *           [PUBLISHED]
             Appellant.                    *

                                ________________

                                Submitted: February 10, 2004
                                    Filed: April 13, 2004
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Before MORRIS SHEPPARD ARNOLD, HANSEN, and SMITH, Circuit Judges.
                       ________________

HANSEN, Circuit Judge.

       David William Dorsch entered a conditional plea of guilty to two counts of
possession of a firearm by a prohibited person, 18 U.S.C. § 922(g)(4) (2000), after the
district court1 denied his motion to dismiss the indictment. On appeal, Dorsch argues
that he has never been committed to a mental institution, as required in order to be a
"prohibited person" under § 922(g)(4). We affirm the district court's judgment.


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        The Honorable Lawrence L. Piersol, Chief Judge, United States District Court
for the District of South Dakota.
       Section 922 makes it unlawful for any person "who has been adjudicated as a
mental defective or who has been committed to a mental institution . . . to . . . possess
in or affecting commerce, any firearm or ammunition." § 922(g)(4). Mr. Dorsch was
arrested in January 2003 by a sheriff's deputy after he arrived at a county water board
meeting intoxicated and carrying a concealed handgun. Two days later federal agents
conducted a warranted search of his residence and seized over 30 firearms. He was
subsequently indicted for violation of § 922(g)(4) when it was learned that he had
been involuntarily "committed" to the South Dakota Human Services Center for a
period of approximately three weeks in 2001. Dorsch argues that his involuntary
commitment under South Dakota law was insufficient to meet the statutory definition
of "committed to a mental institution" contained in § 922(g)(4).

       We review de novo Dorsch's challenge to the district court's legal conclusion
that Dorsch's previous involuntary commitment met the requirements of § 922(g)(4).
United States v. Whiton, 48 F.3d 356, 358 (8th Cir.), cert. denied, 516 U.S. 886
(1995). Section 922 does not define the phrase "committed to a mental institution."
Regulations promulgated under § 922 define "committed to a mental institution" as
"[a] formal commitment of a person to a mental institution by a court, board,
commission, or other lawful authority." 27 C.F.R. § 478.11. The regulations further
specify that involuntary commitments are included within the definition, but persons
in a mental institution for observation or on a voluntary basis are not within the
purview of the statute. Id. Although we construe § 922(g)(4) under federal law, we
seek guidance from the law of the state where the prior commitment occurred as to
the meaning of commitment. Whiton, 48 F.3d at 358.

       In South Dakota, "[a] person is subject to involuntary commitment if: (1) [t]he
person has a severe mental illness; (2) [d]ue to the severe mental illness, the person
is a danger to self or others; and (3) [t]he individual needs and is likely to benefit
from treatment." S.D. Codified Laws § 27A-1-2 (Michie 1999). South Dakota law
provides various procedural protections before a person can be involuntarily

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committed to a mental facility. A person suspected of being in need of immediate
intervention for mental illness reasons must be examined by a qualified health
professional within 24 hours of being taken into custody to determine if the person
meets the requirements listed above. S.D. Codified Laws § 27A-10-6 (Michie 1999
& Supp. 2000). If the board determines the person meets the requirements, the board
must hold an involuntary commitment hearing within five business days. § 27A-10-8.

       Counsel will be appointed to represent a person facing an involuntary
commitment if he does not have retained counsel. S.D. Codified Laws § 27A-11A-7
(Michie 1999) ("In no instance may a person not be represented by counsel."). The
person is allowed to seek an independent examination prior to the hearing, § 27A-10-
5, and to present evidence and subpoena and cross-examine witnesses during the
hearing, § 27A-11A-11. Following the hearing, the board may order involuntary
commitment to a mental facility for not more than 90 days only if the board finds, by
clear and convincing evidence and supported by written findings of fact and
conclusions of law, that the person meets the criteria in § 27A-1-2, the person needs
and will likely benefit from the proposed treatment, and involuntary commitment is
the least restrictive treatment alternative available. § 27A-10-9.1. An involuntarily
committed person may appeal any final board order pursuant to South Dakota's
Administrative Procedures Act, § 27A-11A-25, and is entitled to the benefits of a writ
of habeas corpus, S.D. Codified Laws § 27A-12-32.2 (Michie 1999).

        Dorsch does not claim that he was denied any of the above-enumerated
procedures. Rather, he claims that the 90-day period is an observation period, rather
than a treatment period, and that the result in this case should be similar to that in
United States v. Hansel, 474 F.2d 1120 (8th Cir. 1973). On appeal of Hansel's
conviction for possession of a firearm by a prohibited person, we held that Hansel
was not committed to a mental institution under Nebraska law, but rather was only
temporarily hospitalized for observation. Id. at 1123. Under Nebraska law in effect
at the time, a person could be hospitalized for an initial observation period for up to

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60 days, and could be committed only if, based on the observation, the superintendent
of the hospital determined that the person was indeed mentally ill and so certified to
the County Board of Mental Health. Id. (explaining Neb. Rev. Stat. § 83-328 (1971)
(repealed 1976)). After observing Hansel for a period of time, Hansel's doctor
determined that he did not suffer from a serious mental disorder and Hansel was
subsequently released. Id. at 1122.

        By contrast, the observation period under South Dakota law is the initial five-
day period prior to the hearing. The county board is required to determine at the time
of the hearing whether the person has a severe mental illness, which the county board
determined to be true as to Dorsch. Thus, unlike Hansel, who was never determined
to be mentally ill or in need of hospitalization, the South Dakota county board found
that Dorsch was mentally ill and that involuntary commitment to a mental facility was
the least restrictive treatment available for him. This determination followed a
hearing, during which Dorsch was represented by counsel, was given the opportunity
to present evidence and cross-examine witnesses, and during which a physician
testified that Dorsch was mentally ill and met the requirements of the statute. We
hold that Dorsch was committed to a mental institution as contemplated by §
922(g)(4) and 27 C.F.R. § 478.11.

       Dorsch also claims that an involuntary commitment under South Dakota law
is not a commitment for purposes of § 922(g)(4) because the state legislature did not
intend adverse collateral consequences to flow from an involuntary commitment. See
Matter of Woodruff, 567 N.W.2d 226, 228 (S.D. 1997) (holding that a direct appeal
from an involuntary commitment was moot where appellant was no longer committed
and there were no collateral consequences stemming from the prior commitment); see
also § 27A-12-1.2 ("Notwithstanding any other provision of law, no person may be
deemed incompetent to manage his affairs, to contract, to hold professional,
occupational or other licenses, to marry and obtain a divorce, to register and vote, to
make a will, or to exercise any other rights or privileges accorded to citizens of South

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Dakota solely by reason of his detention, admission or commitment under this title.").
State law is relevant in determining whether a person has in fact been committed to
a mental institution. The consequences of that commitment for purposes of §
922(g)(4) however have been determined by Congress to include a prohibition on
possessing a firearm. One of the purposes of enacting the federal firearms ban was
to establish national uniformity in determinations of whether a person is within a
category of persons prohibited from possessing firearms. See United States v.
Chamberlain, 159 F.3d 656, 660 (1st Cir. 1998). Once we determine that a defendant
has been committed to a mental institution, state legislative intent is irrelevant; we are
bound by Congress's determination of the consequences that flow from that
commitment, as is the State of South Dakota.

       We also reject Dorsch's contention that his alleged inability to seek any judicial
review of his commitment under either state or federal law precludes its use as a
predicate element for his § 922(g)(4) conviction. Dorsch was committed to the
mental facility for only three weeks. As such, he argues that even had he sought to
appeal his commitment under South Dakota law, his appeal would have been mooted
by his release under Woodruff, and there is no way an appeal could have been
completed in such a short time. Thus, he claims that his commitment cannot be used
as the predicate element for his § 922(g)(4) conviction if he cannot challenge its
validity. We disagree.

       The Supreme Court has held that the invalidity of a prior felony is not a defense
to a § 922(g)(1) charge of being a felon in possession of a firearm, even if the prior
conviction violated the defendant's Sixth Amendment rights. See Lewis v. United
States, 445 U.S. 55, 62-63 (1980). In so holding, the Court noted that a convicted
felon was not without relief because the defendant could have challenged the prior
conviction under state law or sought federal relief from the firearm disability. Id. at
64. Thus, if Dorsch was truly prevented from seeking review of or relief from the
administrative proceeding that resulted in his involuntary commitment, due process

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may well prevent use of his prior commitment to a mental institution from serving as
the predicate element of his § 922(g)(4) conviction. Cf. United States v. Mendoza-
Lopez, 481 U.S. 828, 837 (1987) ("If the statute [criminalizing reentry of an alien
following deportation] envisions that a court may impose a criminal penalty for
reentry after any deportation, regardless of how violative of the rights of the alien the
deportation proceeding may have been, the statute does not comport with the
constitutional requirement of due process.").

        We need not decide this issue, however, because, contrary to Dorsch's
assertions, he could have sought an appeal of his commitment, see § 27A-11A-25, or
a writ of habeas corpus, see § 27A-12-32.2, but he did neither. Woodruff does not
aid Dorsch because its holding was predicated on the lack of collateral consequences
attaching to the appellant's commitment. See 567 N.W.2d at 228. Had Dorsch
appealed his order of commitment, he could have raised his inability to possess a
firearm pursuant to § 922(g)(4) as a collateral consequence, thereby preventing his
appeal from being mooted á la Woodruff. Id. ("[T]here are exceptions to mootness
. . . when there are collateral consequences affecting the rights of a party."). Dorsch's
due process rights are not violated merely because he did not avail himself of the
state's appeal procedure.

      The judgment of the district court is affirmed.
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