                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 12-6738


UNITED STATES OF AMERICA,

                 Petitioner - Appellee,

           v.

DONALD SNYDER,

                 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−02125−BR)


Argued:   March 19, 2013                   Decided:   June 24, 2013


Before GREGORY, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: James B. Craven, III, Durham, North Carolina, for
Appellant.   Jennifer Dee Dannels, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.        ON BRIEF:
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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       In   2006,        Donald     Snyder     was    civilly     committed        under     18

U.S.C. § 4246.             Following a competency hearing in March 2012,

the   district        court       found    that     Snyder     continued     to     meet    the

criteria for commitment because he posed a substantial risk of

danger to the person or property of another if unconditionally

released.       Shortly thereafter, in April 2012, the district court

conditionally released Snyder under a specific regimen of care.

On    appeal,       Snyder       argues     that    the   district      court      erred     by

finding that he continued to meet the criteria for commitment

and   by    ordering        conditional       release        instead    of   unconditional

release.        For       the    reasons     addressed        below,    we   disagree       and

affirm the district court’s orders.



                                               I.

       In   June         2004,    Snyder     was     charged     with     making     threats

against the president.                  Following a psychiatric evaluation at

Federal Medical Center Butner (“FMC Butner”), Snyder was found

incompetent         to    stand     trial     and     unlikely    to    be    restored       to

competency      in       the     near   future.        The    government      subsequently

dismissed       the       criminal        charge     against     Snyder      and    filed    a

Certificate of Mental Disease or Defect and Dangerousness under

18    U.S.C.    §     4246,       which     permits    hospitalization         of    certain

persons suffering from a mental disease or defect.                                On October

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3,   2006,     the    United        States      District         Court    for      the    Eastern

District of North Carolina committed Snyder to the custody of

the Attorney General under Section 4246.

      Between       January     2008      and     July      2011,       the    district      court

conducted      several      competency       review         hearings          to   determine     if

Snyder continued to meet the criteria for commitment.                                     In July

2008, the district court conditionally discharged Snyder, but

revoked      his    release    after       less      than       one    week    because      Snyder

threatened to shoot patrons in a bar in violation of his release

conditions.          Snyder    then       returned         to    FMC    Butner.          With   the

exception      of    that     brief       period      of    conditional            release,     the

district court determined at each competency hearing that Snyder

continued      to    meet     the    criteria        for        commitment.          This   Court

affirmed several of those decisions on appeal.

      On January 6, 2012, Snyder filed a motion for a hearing to

determine if he should be discharged.                             Prior to the hearing,

Snyder was examined by two psychiatrists:                                Dr. Holly Rogers,

whom the court ordered to evaluate Snyder, and Dr. Bryon Herbel,

a    staff    psychiatrist           at    FMC       Butner       and     Snyder’s        primary

clinician.         Each psychiatrist submitted a forensic update to the

district court.

      Dr. Herbel and Dr. Rogers agreed that Snyder suffers from

the mental disease of schizoaffective disorder.                                Because of that

disease, both psychiatrists believed that Snyder would continue

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to have episodes of decompensation and illness requiring periods

of   confinement         in    psychiatric       hospitals.              Nevertheless,          both

psychiatrists         believed        Snyder     should       be    released.            But    Dr.

Herbel and Dr. Rogers disagreed about whether conditional or

unconditional release was appropriate.                        Dr. Rogers believed that

Snyder did not present a substantial risk of danger.                                Therefore,

she opined that Snyder did not continue to meet the criteria for

commitment and should be unconditionally released.                                 Dr. Herbel,

however, opined that because of Snyder’s history of threatening

others      during       periods      of    illness,         he    continued       to     pose    a

substantial risk of danger if he were unconditionally released.

Dr. Herbel therefore recommended conditional release.

       At      the    competency           hearing      on        March     12,     2012,       the

psychiatrists testified consistent with their forensic reports,

with     Dr.      Rogers      recommending       unconditional            release        and    Dr.

Herbel      recommending           conditional        release.        Both        psychiatrists

agreed      that     aside     from    making        threats,       Snyder        had    actually

harmed other people or property on only one occasion, when he

kicked      out    the     window     of    a   police       car    after    his        June    2001

arrest.      Snyder also testified at the hearing.

       At the end of the hearing, the district court found that

Snyder      continued         to   meet    the       criteria      for    commitment           under

Section 4246 because he failed to prove by a preponderance of

the evidence that he had recovered from his mental disease to

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such an extent that his unconditional release would no longer

create      a    substantial            risk    of    danger        to   others       or    property.

Nevertheless, the district court advised Snyder that “if the

authorities do submit [to] me the conditional release plan, I

will be very happy to sign it.”                            J.A. 59.      On the same day, the

district court entered an order consistent with its statements

in open court.

       On       March       29,    2012,       the    Warden        at   FMC    Butner       filed     a

Certificate            of     Improved         Mental        Condition         and     Request       for

Conditional        Release          under      Section        4246(e).          The     certificate

stated      that       Snyder      had     recovered         from    his      mental       disease    or

defect      such       that       his    conditional         release       under      the    attached

regimen of care did not pose a substantial risk of danger to

others or property.                     On April 5, 2012, the government filed a

motion      for        conditional         release         with     proposed         conditions       of

release.          The government attached to its motion the Warden’s

certificate and a letter from a United States Probation Officer

accepting the proposed conditional release plan for Snyder.                                          The

district court filed an order of conditional release on the same

day.     Snyder was released on April 19, 2012.



                                                     II.

       Snyder appeals from the district court’s March 12 order,

arguing         that     the      district       court       erred       by    finding       that     he

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continued      to   meet    the     criteria              for    commitment       because       his

unconditional       release      posed       a    substantial            risk    of    danger   to

other people or property.             Snyder also appeals from the district

court’s April 5 order, contending that the district court erred

by   ordering       conditional       release               instead       of     unconditional

release.

                                                 A.

     A district court’s decision to deny unconditional release

under    Section    4246    is    a   factual              determination         that   will     be

overturned     by   this    Court     only           if    clearly       erroneous.       United

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

discharge a person hospitalized under Section 4246(d), a court

must find by a preponderance of the evidence that the person has

recovered from his mental disease or defect such that either (1)

his unconditional release would no longer create a substantial

risk of danger to the person or property of another; or (2) his

conditional     release       under      a       prescribed         regimen       of    medical,

psychiatric, or psychological care or treatment approved by the

court and the director of the facility in which the person is

committed would no longer create a substantial risk of danger to

the person or property of another.                              18 U.S.C. § 4246(e); see

also 18 U.S.C. § 4247(h) (permitting a person committed under

Section 4246 to file a motion for a hearing to determine if he



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or she should be discharged even if the director of the facility

does not file a certificate of recovery).

                                      B.

     Snyder     first   challenges    the   district     court’s   March    12

finding that his unconditional release would pose a substantial

risk of danger to the person or property of another.

     We conclude that there is sufficient evidence in the record

to support the district court’s finding.           The evidence regarding

Snyder’s illness and history is undisputed, and Snyder does not

dispute that he has a mental disease.            Because of that disease,

Dr. Herbel and Dr. Rogers believed that Snyder would continue to

have episodes of illness requiring periods of hospitalization.

Dr. Herbel and Dr. Rogers also agreed that aside from making

threats against the president on two occasions and threatening

bar patrons during a prior period of conditional release, Snyder

caused actual harm on one occasion when he kicked out the window

of a police car after his 2001 arrest.

     Based on Snyder’s mental disease and history of threatening

others during periods of illness, Dr. Herbel opined that Snyder

would pose a substantial risk of dangerousness to persons or

property   if   unconditionally      released.     See    United   States   v.

Ecker, 30 F.3d 966, 970 (8th Cir. 1994) (stating that overt acts

of   violence     are    not   required     to    prove     dangerousness).

Nonetheless, Dr. Herbel believed that Snyder would not pose such

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a threat if conditionally released.                    Dr. Rogers disagreed about

the   degree     of   risk    posed   by    Snyder’s      unconditional    release,

explaining that despite his mental illness, Snyder did not have

a history of violence against other people.

      It   was   not    clearly    erroneous       for    the   district   court   to

accord Dr. Herbel’s testimony greater weight than Dr. Rogers’s

testimony, particularly since Dr. Herbel was Snyder’s primary

psychiatrist at FMC Butner, while Dr. Rogers evaluated Snyder

only periodically.           See Cox, 964 F.2d at 1433.            Accordingly, we

reject Snyder’s argument.

                                            C.

      Snyder     next    contends     that       the    district   court   erred   by

ordering conditional release instead of unconditional release.

      As   discussed      above,      Dr.    Herbel      recommended   conditional

release, and the district court did not clearly err by accepting

that recommendation and denying unconditional release.                      Shortly

after the March 12 competency hearing, the Warden at FMC Butner

filed a certificate of improved mental condition on March 29,

2012, which stated that Snyder’s conditional release under the

attached regimen of care would no longer create a substantial

risk of danger.         On April 5, 2012, the government filed a motion

for conditional release with proposed conditions of release, and

the district court filed an order of conditional release on the

same day.      Thus, Snyder’s discharge proceeded in accordance with

                                            8
Section 4246(e), and the district court did not clearly err by

ordering his conditional release.

     Accordingly, we affirm the district court’s March 12 and

April 5 orders.



                                                      AFFIRMED




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