                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                                                                F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                                                                                 March 3, 2006
                               FOR THE FIFTH CIRCUIT                        Charles R. Fulbruge III
                                                                                    Clerk


                                     No. 05-10149
                                   Summary Calendar



      UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee,

                                          versus

      SEALED APPELLANT 1
                                                   Defendant-Appellant,



                    Appeal from the United States District Court for
                             the Northern District of Texas
                              (USDC No. 4:03-CV-1233)
           _________________________________________________________

Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.

PER CURIAM:*

      We remand for the following reasons:

      1.      18 U.S.C. § 4246(f) sets forth the procedure for revocation of the

      conditional release of a person committed to the custody of the Attorney General


      *
        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not be published and is not precedent except under the limited circumstances set forth in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.

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for psychiatric treatment and care. Specifically, § 4246(f) provides:

       The court shall, after a hearing, determine whether the person should
       be remanded to a suitable facility on the ground that, in light of his
       failure to comply with the prescribed regimen of medical, psychiatric,
       or psychological care or treatment, his continued release would create
       a substantial risk of bodily injury to another person or serious damage
       to property of another.

Thus, the statute unambiguously requires that the court make two findings

before revoking a conditional discharge: (1) that the person failed to comply with

his prescribed regimen of medical, psychiatric, or psychological treatment; and (2)

in light of that failure, the person’s continued release would create a substantial

risk of bodily injury to another person or serious damage to property of another.

18 U.S.C. § 4246(f); United States v. Woods, 995 F.2d 894, 896 (9th Cir. 1993).

2.     Relying on the district court’s opinion in United States v. Woods, 970 F.

Supp. 711 (D. Minn. 1997), and the language in § 4246(f), the district court held

that it did not need to make a finding on the issue on whether Appellant’s

continued release would create a substantial risk of bodily injury to another

person or serious damage to property of another. Based on that holding, the

district court denied Appellant’s request to continue the hearing for the purpose of

obtaining an independent mental health examination. It specifically stated that

“[h]ad dangerousness been an issue to be decided ..., the court would at this time

continue the hearing to the end of allowing [Appellant] time to obtain an

independent opinion on that issue. Having concluded that the issue was not


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relevant, the court does not consider that there is anything to gain by prolonging

the hearing.” We read Woods and the statutory language of § 4246(f) differently.

3.     Although the district court held that whether Appellant’s continued release

would create a substantial risk of bodily injury to another person or serious

damage to property of another was irrelevant, earlier in the same order, the court

stated, “under the record now before the court, the court could, and would if

relevant, find that, in light of respondent’s failure to comply with the prescribed

regimen, her continued release would create a substantial risk of bodily injury to

another person or serious damage to property of another.” This seems to indicate

an alternative holding. However, this alternative holding would be inconsistent

with the district court’s statement in the same order that had “dangerousness” been

an issue, it would “continue the hearing to the end of allowing respondent time to

obtain an independent opinion on that issue.” We therefore remand this case to

the district court to make an express finding on whether Appellant’s continued

release would create a substantial risk of bodily injury to another person or serious

damage to property of another. In making such a finding, the district court should,

consistent with its order, permit the Appellant to have her own examination by a

mental health expert and to present evidence on the issue of whether her continued

release would create a substantial risk of bodily injury to another person or serious

damage to property of another.

       The Government’s motion to dismiss is denied as moot.

                                      3
REMANDED WITH INSTRUCTIONS.




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