                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 07 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50210

              Plaintiff - Appellee,              D.C. No. 3:13-cr-03952-CAB-1

  v.
                                                 MEMORANDUM*
RICARDO VILLEGAS,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 14-50345

              Plaintiff - Appellee,              D.C. No. 3:13-cr-03952-CAB-1

  v.

RICARDO VILLEGAS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                 Cathy Ann Bencivengo, District Judge, Presiding

                    Argued and Submitted November 20, 2014
                              Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WARDLAW and PAEZ, Circuit Judges, and KENNELLY, District
Judge.**

      Ricardo Villegas was charged with illegal reentry following deportation in

violation of 8 U.S.C. § 1326. He was found incompetent to stand trial and, on

November 22, 2013, was ordered hospitalized pursuant to 18 U.S.C. § 4241(d)(1).

Villegas was admitted to the U.S. Medical Center for Federal Prisoners in

Springfield, Missouri (FMC–Springfield) on March 5 or March 6, 2014. Shortly

thereafter, Villegas moved to dismiss the indictment on the ground that the time

limit in § 4241(d)(1) had expired four months after the district court’s commitment

order. The district court denied the motion, ruling that the statutory period had not

commenced until his arrival at FMC–Springfield. Villegas appealed. The appeal

from that order is before this court as No. 14-50210.

      After the appeal was filed, the staff at FMC–Springfield concluded that

Villegas was not likely to be restored to competency without involuntary

medication. The government moved to dismiss the charge against Villegas due to

his incompetency. The district court granted the motion and dismissed the case

without prejudice on July 9, 2014. Judgment of dismissal was entered the next



       **
             The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.

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day. On July 14, 2014, the district court issued an order directing that Villegas

remain at FMC–Springfield for a dangerousness evaluation pursuant to 18 U.S.C. §

4246. Villegas appealed the commitment order. The appeal from that order is

before this court as No. 14-50345.

      We have jurisdiction over Villegas’s appeals under the collateral order

doctrine. See United States v. Loughner, 672 F.3d 731, 743 (9th Cir. 2012); United

States v. Godinez-Ortiz, 563 F.3d 1022, 1026–29 (9th Cir. 2009); United States v.

Friedman, 366 F.3d 975, 979–80 (9th Cir. 2004).

      The plain language of § 4241(d) provides that the four-month period of

evaluative commitment begins on the date of hospitalization. See 18 U.S.C.

§ 4241(d) (“The Attorney General shall hospitalize the defendant for treatment in a

suitable facility . . . for such a reasonable period of time, not to exceed four months

. . . .”). The statutory period was therefore triggered when Villegas arrived at

FMC–Springfield on March 5 or March 6, 2014.

      Because the case was not dismissed until July 9, 2014 and the commitment

order was not extended, Villegas was held three or four days in excess of the four-

month period authorized by § 4241(d). See 18 U.S.C. § 4241(d)(2); Loughner, 672

F.3d at 768. However, the unauthorized commitment was harmless error, because

Villegas would have remained in custody after the four-month period ended even if


                                           3
there had been no violation. See 18 U.S.C. §§ 4241(d), 4246(a); FED. R. CRIM. P.

52(a). Accordingly, we affirm the district court’s denial of Villegas’s motion to

dismiss.

      As to the second order under review, the district court lacked jurisdiction to

order Villegas’s commitment for a dangerousness evaluation. The court issued the

order five days after the criminal charge was dismissed. Because Villegas’s case

was no longer pending, the district court did not have jurisdiction. See

Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1076 (9th Cir. 1999).

For that reason, we vacate the order committing Villegas for a dangerousness

evaluation.

      Proceedings have been initiated in the Western District of Missouri pursuant

to § 4246. See United States v. Villegas, No. 6:14-cv-03427-MDH (W.D. Mo.

filed Oct. 1, 2014). Villegas automatically became subject to § 4246 when his

mental condition did not improve after four months of hospitalization. See 18

U.S.C. §§ 4241(d), 4246(a). Thus, the Western District of Missouri retains

jurisdiction over the § 4246 dangerousness determination.

      In sum, we affirm the district court’s denial of Villegas’s motion to dismiss,

at issue in appeal No. 14-50210. We vacate the district court’s order directing that




                                         4
Villegas remain committed pursuant to § 4246, at issue in appeal No. 14-50345.

      AFFIRMED in part, VACATED and DISMISSED in part.




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