                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4868


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CHARLIE SONG,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:12-cr-00372-LMB-1)


Argued:   May 17, 2013                    Decided:    June 25, 2013


Before NIEMEYER, AGEE, and THACKER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Kevin R. Brehm, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Ryan K. Dickey, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff, Federal Public Defender,
Alexandria, Virginia, for Appellant.   Neil H. MacBride, United
States Attorney, Alicia J. Yass, Special Assistant United States
Attorney,   Jonathan  Keim,  Special  Assistant   United  States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Charlie Song appeals an order of the district court

committing him to the Federal Bureau of Prisons (“BOP”) for a

mental status and competency examination pursuant to 18 U.S.C.

§§ 4241(b),          4242(a),      and      4247(b),        and        an     order      denying

reconsideration of the same.                 Because we lack adequate findings

upon which to decide whether the district court’s commitment

order is a proper exercise of its discretion, we vacate the

commitment order and remand for further proceedings.

                                             I.

            On       August     23,    2012,       a   grand      jury      sitting      in   the

Eastern   District         of   Virginia       returned        an   indictment        charging

Song with one count of attempted receipt of child pornography

and one count of possession of child pornography.                                     Song was

arrested on August 27 and made his initial appearance before a

magistrate judge the same day.                     During a detention hearing held

the following day, August 28, the magistrate judge granted the

Government’s request that Song be detained pending trial.                                      On

August    29,    Song      moved      to   revoke      the     detention         order.        On

September       5,    during     Song’s      arraignment,           the       district    court

released him on conditions of bail that included the appointment

of two third-party custodians.                     In addition, the district court

ordered   that       any   pretrial        motions     be    filed       by    September      19.

Song   filed     several        motions     in      advance       of    the     September      19

                                               2
deadline,          including     two       motions    to    suppress,    a    motion   to

dismiss, and a motion for a bill of particulars. 1

                  On October 9, 2012, Song filed a notice of intent to

raise the insanity defense.                  The notice indicated that Song, who

has suffered from schizophrenia throughout his life, intended to

present       a    defense     of    insanity,       as    well   as   expert   evidence

relating to a mental condition bearing on the issue of guilt.

That       same    day,   Song      also    moved    to    reinstate    the   previously

withdrawn motions.               The following day, Wednesday, October 10,

the district court ordered a “status” hearing to be held on

October 16 to address several of Song’s submissions.                            In that

order, the district court stated in pertinent part,

       Before the Court are several pleadings filed by the
       defendant, a Notice of Insanity Defense and Expert
       Evidence of Mental Condition, Motion to Allow Late
       Filing of Notice and to Reset Trial, and Motion to
       Reinstate Previously Withdrawn Motions.     For good
       cause shown and there being no objection by the
       government, a status hearing will be scheduled to
       address these and any other matters that have arisen.
       Accordingly, it is hereby

                  ORDERED that a status hearing be and is scheduled
                  for Tuesday, October 16, 2013, at 11:00 a.m.
                  before the undersigned judge.

J.A. 99 (brackets and emphasis omitted). 2

       1
       Song moved to withdraw these motions on September 28.                           The
district court granted the motion the same day.
       2
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.


                                               3
              Two days after the status hearing notice, on Friday,

October    12,   Song     filed   a     motion     requesting        that       any    mental

health examination be conducted on an outpatient basis in the

metropolitan      area    of    Washington,        D.C.        The   day        before    the

scheduled hearing, October 15, the Government filed a response

to   Song’s    October    9    notice    of     intent    to    raise      the    insanity

defense.      In that response, the Government requested that Song

be committed to the custody of the BOP for a mental health

examination.        The   Government        also    submitted        to    the    district

court a video and transcript of a law enforcement interview of

Song, which occurred on June 26, 2012.

              On October 16, 2012, the district court held a 27-

minute    hearing   during      which    the     court    addressed         a    number   of

pretrial motions, including, principally, the issue of Song’s

mental health.       Neither before nor during the hearing did the

district court ask the Government to present evidence supporting

its request for a custodial examination, nor did it inquire if

Song   intended     to    present     any     evidence    bearing         on     the    same.

Neither the Government nor Song presented any witness testimony

or other evidence at the hearing.

              Nonetheless, at the close of the hearing, the district

court indicated in a brief discussion its intention to order

Song to self-surrender to a BOP facility for a custodial mental

health examination.            The district court offered the following

                                            4
rationale for granting the Government’s request for a custodial

examination:

       Now, the issue then is the type of examination that
       would be most appropriate.     There are two options.
       One is the outpatient examination, which is normally
       just a couple of hours of interviews with a defendant.

       I think this case is more complicated than that and
       the defendant’s condition more nuanced than that.
       Just again from my observations of the defendant in
       court, my review of his statement to the agents, and I
       haven’t had a chance to review the tape but that will
       probably, I suspect present more information, but at
       this point, my experience has been that the out-of-
       custody type of interviews just are not as thorough,
       and in this case, the government’s request for a
       residential  custodial   evaluation  is  in   my  view
       warranted. So I am going to grant the motion.

J.A.    196-97    (emphasis      added).         Following        the   hearing,    the

district court entered an order requiring Song’s commitment for

a custodial examination.

            The     next      day,    October              17,   Song    moved      for

reconsideration and submitted to the district court an excerpt

from the Legal Resource Guide to the Federal Bureau of Prisons

in support of his request for a non-custodial examination.                          The

Government      opposed    the   motion        and    submitted    to   the   district

court the Bureau of Prisons’ Program Statement for Forensic and

Other Mental Health Evaluations.

            On October 23, 2012, the district court issued the two

orders that are now before us on interlocutory appeal.                              The

first   order     denied   Song’s    motion          for   reconsideration     of   the


                                           5
district court’s initial order, entered October 16, 2012, which

required Song to submit to a custodial examination.                                    The second

order       directed         Song    to      self-surrender            to   a    BOP    facility,

preferably Federal Correction Institution Butner (“Butner”), for

a reasonable time not to exceed 45 days to undergo a mental

health          examination.         The     district          court    explained        that    the

examination should address whether Song is competent to stand

trial; whether, during the commission of the acts constituting

the    offense,            Song   was     unable        to   appreciate         the    nature    and

quality of the wrongfulness of his acts; and the bearing, if

any,       of    any   mental       condition       on       the   issue    of    guilt.        Song

noticed this appeal on November 1, 2012. 3

                                                   II.

                  While the parties do not dispute our jurisdiction to

hear this appeal, we conclude the orders before us fall within

the ambit of the collateral order doctrine.                                 See United States

v. Deters, 143 F.3d 577, 579-82 (10th Cir. 1998) (“[W]e hold

that a commitment order issued pursuant to 18 U.S.C. § 4247(b),

whether         it    be    for   the    purpose        of    ascertaining        competency     to

stand trial under section 4241 or for the purpose of evaluating

insanity         at    the    time      of   the    offense        under    section      4242,    is

       3
       On November 2, 2012, Appellant filed an emergency motion
to stay the mental health examination, which the district court
granted later that day.



                                                    6
immediately appealable.”); see also Sell v. United States, 539

U.S. 166, 176 (2003) (describing collateral order exception);

United    States    v.   Bowles,     602   F.3d   581,   582    (4th    Cir.       2010)

(same).     We thus possess jurisdiction over this interlocutory

appeal.

            We     review   a   district       court’s   decision      to    order    a

custodial    mental      health     examination      pursuant     to    18     U.S.C.

§§ 4241 and 4247(b) for an abuse of discretion.                     See 18 U.S.C.

§ 4247(b) (“For the purposes of an examination pursuant to an

order under section 4241, . . . the court may commit the person

to be examined for a reasonable period, but not to exceed thirty

days.”) (emphasis added); Deters, 143 F.3d at 579 (“The district

court . . . has the discretion to confine a defendant during the

examination period.”); United States v. Neal, 679 F.3d 737, 740

(8th Cir. 2012) (same); cf. United States v. Banks, 482 F.3d

733, 743 (4th Cir. 2007) (“We defer so to the district court

because it is in a superior position to adjudge the presence of

indicia     of     incompetency      constituting        reasonable         cause    to

initiate a hearing [pursuant to 18 U.S.C. § 4241(a)].”).

                                         III.

            Song    contends       the   district   court      violated      his     due

process rights by failing to conduct an evidentiary hearing and

make     sufficient      factual     findings     concerning      the       need    for

commitment to the BOP for a mental health examination.                             While

                                           7
the Government does not dispute that Song should be afforded

some due process protection, it essentially contends that the

process   below    was   sufficient.        Specifically,     the   Government

asserts the district court undertook a thorough review of the

evidence and circumstances prior to determining that a custodial

mental health examination was warranted.

            Notwithstanding the parties’ arguments in framing the

issues as they perceive it, for purposes of this stage of the

appellate proceedings, we can resolve the issue without the need

to address their constitutional arguments.               See Ashwander v.

Tenn. Valley Auth., 297 U.S. 288, 341-56 (1936) (Brandeis, J.,

concurring) (stating that courts should not “decide issues of a

constitutional     nature   unless    absolutely    necessary”).        Indeed,

based on this record, we are unable to conduct an appellate

review of the district court orders being appealed.                 See, e.g.,

J.H. Henrico Cnty. Sch. Bd., 326 F.3d 560, 567 (4th Cir. 2003)

(vacating    and    remanding    an     Individuals     with    Disabilities

Education    Act   action    because       the   “appellate    record    [was]

inadequate for effective appellate review”).

                                      A.

            In response to Song’s notice of intent to raise the

insanity defense, the Government requested that Song undergo a

custodial mental health examination.             When the defendant files

such a notice and the Government so moves, the district court

                                       8
“shall order that a psychiatric or psychological examination of

the   defendant      be    conducted,       and    that     a   psychiatric      or

psychological report be filed with the court, pursuant to the

provisions of section 4247(b) and (c).”                   18 U.S.C. § 4242(a).

An examination regarding the defendant’s sanity at the time of

the offense was therefore required by statute; thus, we need

only decide whether the district court properly ordered that the

examination be conducted as a custodial examination.

             As   noted,   Song’s   mental    health      examination     must   be

conducted pursuant to 18 U.S.C. § 4247(b), which provides, “the

court may commit the person to be examined for a reasonable

period” -- up to 30 days for a competency examination and 45

days for a sanity examination -- “to the custody of the Attorney

General     for   placement   in    a   suitable    facility.”       18    U.S.C.

§ 4247(b)     (emphasis    supplied). 4       These    time     periods   may    be


      4
          The provision states, in full, as follows:

     (b) Psychiatric or psychological examination. -- A
     psychiatric   or   psychological   examination  ordered
     pursuant to this chapter shall be conducted by a
     licensed or certified psychiatrist or psychologist,
     or, if the court finds it appropriate, by more than
     one such examiner.    Each examiner shall be designated
     by the court, except that if the examination is
     ordered under section 4245, 4246, or 4248, upon the
     request of the defendant an additional examiner may be
     selected by the defendant.      For the purposes of an
     examination pursuant to an order under section 4241,
     4244, or 4245, the court may commit the person to be
     examined for a reasonable period, but not to exceed
(Continued)
                                        9
extended by up to 15 days for a competency examination and up to

30 days for a sanity examination, according to statute.             Id.

However,   the   statute   does   not   articulate   a   standard   for

determining under what circumstances a custodial examination is

appropriate.

           Although § 4247(b) uses the word “may” when describing

a district court’s ability to commit a person to the BOP for an

inpatient competency examination, the statute does not grant a

district court unbounded discretion to order such a commitment

as opposed to an outpatient examination. 5      See United States v.




     thirty days, and under section 4242, 4243, 4246, or
     4248 for a reasonable period, but not to exceed forty-
     five days, to the custody of the Attorney General for
     placement    in     a    suitable     facility.     Unless
     impracticable,   the    psychiatric    or    psychological
     examination   shall   be   conducted   in   the   suitable
     facility closest to the court.       The director of the
     facility may apply for a reasonable extension, but not
     to exceed fifteen days under section 4241, 4244, or
     4245, and not to exceed thirty days under section
     4242, 4243, 4246, or 4248 upon a showing of good cause
     that the additional time is necessary to observe and
     evaluate the defendant.

18 U.S.C. § 4247(b).
     5
       While the Supreme Court has not articulated a specific
test for determining when pretrial commitment of an accused for
purposes of a custodial mental health examination is permissible
under the Due Process Clause, we are confident that “[t]he
institutionalization of an adult by the government triggers
heightened, substantive due process scrutiny.   There must be a
‘sufficiently compelling’ governmental interest to justify such
action. . . .” Reno v. Flores, 507 U.S. 292, 316 (1993)
(Continued)
                                  10
Neal, 679 F.3d 737 (8th Cir. 2012); United States v. Deters, 143

F.3d 577, 582–84 (10th Cir. 1998); In re Newchurch, 807 F.2d

404, 409 (5th Cir. 1986).

                                           B.

            In   support      of    his    position        that   the    mental     health

examination      must   be    performed         on    an    outpatient      basis,      Song

relies on Newchurch, 807 F.2d 404, and Neal, 679 F.3d 737, cases

that address the question presented here.

            In   Newchurch,        the    Fifth       Circuit     vacated    a    district

court   order     committing        a    defendant         to   the   custody      of    the

Attorney    General     for    a    custodial         examination       because     “[t]he

government offered no evidence that the commitment of Newchurch

.   .   .   is   necessary         or    that    an    examination       adequate       for

determination of his sanity . . . cannot be conducted on an

outpatient basis or by a confinement of short duration in a

hospital near the place of trial.”                    807 F.2d at 410.           Newchurch

reasoned, “a district court should not exact such a deprivation

of liberty” unless there is “some evidence that commitment is

necessary.”      Id.    To that end, the Fifth Circuit concluded, “the

district court should make findings of fact concerning the need




(O’Connor, J., concurring) (quoting United States v. Salerno,
481 U.S. 739, 748 (1987)).



                                           11
for commitment to the custody of the Attorney General.”                            Id. at

412.

              The Tenth Circuit in Deters, 143 F.3d 577, resolved

the question likewise.            The court in Deters held, “In ordering

commitment     pursuant     to    18   U.S.C.     §    4241,    a    ‘district        court

should    make       findings     of    fact       concerning          the     need    for

commitment,’ and ‘[a]n appellate court should give appropriate

deference not only to these findings but also to the conclusion

reached by the district court’ regarding the appropriateness of

confinement.” Id. at 584 (quoting Newchurch, 807 F.2d at 412).

In Deters, unlike this case, the district court actually held an

evidentiary      hearing,      discussed    on    the    record      the     defendant’s

request that she be evaluated on an outpatient basis, and then

made factual findings identifying two governmental interests --

the    risk    the    defendant    would    not       appear    at     trial    and     the

defendant’s unstable living conditions -- which justified the

custodial examination.           See id. at 583–84.

              The     Eighth     Circuit        recently       adopted       the      Fifth

Circuit’s approach in Neal.             The Neal court explained that the

failure   of    the    district    court    to     “require      the    government       to

present evidence to justify the inpatient commitment, seriously

consider the defendant’s alternative request for an outpatient

examination, or make findings of fact concerning the need for

commitment,” necessitated remand.                See Neal, 679 F.3d at 741-42.

                                           12
In the absence of such factual findings, the court concluded it

was left unable to determine whether the district court’s order

satisfied due process.                 We face a similar circumstance in the

case at bar.

                                               C.

             Unlike Deters, and more akin to the circumstances of

Newchurch and Neal, the record below does not reveal specific

factual     findings        on      which      the     district      court      justified

committing Song for a custodial examination.                            The Government

directs     us     to    its     submissions,         principally       the   video   and

transcript of a law enforcement interview of Song that occurred

on   June    26,    2012,        which    they      claim   raise   serious      concerns

regarding     the       nature    of     his   illness      and   subsequent     insanity

notice.     However, the district court’s own statement during the

status hearing indicated the court did not review the video.

See J.A. (“I haven’t had a chance to review the tape. . . . “).

In any event, although there is some support in the record that

the district court considered the transcript of the interview,

it is unclear how the interview bore on the need for a custodial

rather    than     outpatient          examination.         Moreover,     the   district

court’s     explicit       reliance       on   its    own    personal    experience    in

other cases does not satisfy due process, as it has no nexus to

the specific commitment determination for Song.                         If the district

court’s sole rationale for choosing a custodial, as opposed to

                                               13
an outpatient, format for the examination of Song is the court’s

subjective experience in other cases, then the court abused its

discretion as a matter of law.                See Newchurch, 807 F.2d at 411-

12 (“The district court should not undertake to evaluate the

quality of outpatient examination as opposed to an examination

conducted in the custody of the Attorney General solely on its

personal    past      experience,      for    that        experience    is   neither    a

matter    of    record,      a    subject     for      cross   examination,      nor    a

question susceptible to review on appeal.”).

              Because the district court did not receive evidence

upon which to base a custodial finding for Song’s examination or

make explicit factual findings that would allow us to determine

whether the district court properly exercised its discretion in

this case, we are constrained to vacate the commitment order.

Without a factual record upon which we can review the district

court’s     commitment       determination           to     ascertain    whether      its

discretionary authority was properly exercised, we are unable to

undertake      our    appellate     review       function.       See,    e.g.,   JH     v.

Henrico Cnty. Sch. Bd., 326 F.3d at 567 (vacating and remanding

action     because     the       “appellate      record      [was]     inadequate      for

effective appellate review”); FDIC v. Aroneck, 643 F.2d 164, 167

(4th   Cir.    1981)     (in      reviewing      a    discretionary      grant   of    an

attorney’s      fee    award,      observing         that   “[e]ffective     appellate

review of such a discretionary determination is impossible . . .

                                            14
unless    [the   appellate    court]      has   before    [it]    the   district

court’s reasons for finding a particular award appropriate,” and

vacating and remanding the judgment where the district court

failed to the necessary findings of fact and to articulate the

basis for its decision).

                                         IV.

            In   view   of   the   foregoing,      we    vacate   the   district

court’s    commitment    order     and    remand   this    case   for   further

proceedings consistent with this opinion.

                                                          VACATED AND REMANDED




                                         15
