                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-7196


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MICHAEL EUGENE LOCKLEAR,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:09-cr-00021-BO-1)


Argued:   March 20, 2012                  Decided:   June 19, 2012


Before KEENAN and FLOYD, Circuit Judges, and Norman K. MOON,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.


Reversed and remanded by unpublished per curiam opinion.


ARGUED: G. Alan DuBois, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant.      John Samuel Bowler,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.    ON BRIEF: Thomas P. McNamara, Federal Public
Defender, Raleigh, North Carolina, for Appellant.      Thomas G.
Walker, United States Attorney, Jennifer P. May-Parker, Kristine
L. Fritz, Assistant United States Attorneys, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Section 4241 of Title 18 of the United States Code sets

forth a framework for district courts to use in determining if a

defendant      is    competent     to       stand   trial   and,      if   not,   whether

“there    is   a     substantial     probability        that    in    the   foreseeable

future he will attain the capacity to permit the proceedings to

go    forward.”        18   U.S.C.      §    4241(d)(1).        If     a   defendant     is

incompetent and unable to be restored to competency, however,

the    court    must    proceed      to      evaluate    him    for    possible        civil

commitment pursuant to 18 U.S.C. § 4246.

       There are two primary questions presented in this appeal.

The    first    is     whether    the       district    court      actually       remanded

Appellant Michael Eugene Locklear to FMC Butner for the purpose

of being reevaluated for mental competency to stand trial and,

if so, whether such decision was an abuse of discretion.                                 And

second, in that those charged with determining if Locklear is a

candidate      for    civil   commitment          already   have      determined       twice

that he is not, we consider whether the district court erred in

continuing to have him detained for further evaluation.                           For the

reasons     that       follow,     we        answer     both    questions         in    the

affirmative.         Consequently, we reverse and remand the district

court’s decision.




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                                                 I.

     Locklear        went        to        the        offices        of      United       States

Representative Mike McIntyre in Lumberton, North Carolina, on

November    4,    2008,     to    meet      personally            with    the     congressman.

After   learning     that     Representative                McIntyre      was     unavailable,

Locklear allegedly became belligerent and violent.                                As a result,

he was charged with assault on a federal official, in violation

of 18 U.S.C. § 111(a)(1), and threatening to murder a federal

official, in violation of 18 U.S.C. § 115(a)(1)(B).

     Locklear suffers from mental illness, which causes him to

experience       delusions.           As    part       of    his     delusions,       Locklear

believed that an unknown government agency was monitoring his

computer.         According       to       Locklear,         this     monitoring       somehow

stemmed from the purported prominent role that he played in the

2004 John Kerry presidential campaign, for which he thinks he

never received proper credit.

     Soon    after     Locklear’s           arrest,          it     became      evident      that

Locklear    might    not    be    competent            to    stand       trial.       Thus,   on

February 4, 2009, pursuant to the government’s motion and with

Locklear’s consent, the district court ordered an evaluation of

Locklear’s mental competency.

     Locklear      underwent          several         competency     evaluations        at    the

Federal Medical Center in Butner, North Carolina (FMC Butner),

the last of which, dated August 10, 2010, concluded that “there


                                                 3
is     not   a        substantial         probability          [Locklear]        will       regain

competency         to        stand      trial     in        the    foreseeable             future.”

Subsequently, the district court conducted a competency hearing.

The district court then issued an order signed on September 22,

2010, stating, in relevant part, the following:

       [T]he Court finds that the defendant does in fact
       remain incompetent to stand trial and that there is
       currently no substantial probability that he will be
       restored to competency within the foreseeable future.
       Furthermore, given the nature of the charges against
       him and evidence supportive thereof, as well as the
       delusional condition which continues to afflict him,
       the Court finds that his release would create a
       substantial risk of bodily harm to another person as
       well as serious risk to the property of another. The
       Court therefore concludes that it must proceed in
       accordance with the provisions of [18 U.S.C. § 4246].

       Almost four months later, however, in a report signed on

January      18,      2011,      the      doctors      at    FMC    Butner       informed         the

district court that Locklear “does not meet the criteria for

commitment pursuant to [§ 4246].”                           According to these doctors,

“although        [Locklear]          is    presently         suffering         from    a     mental

illness, Delusional Disorder, Grandiose type, his release to the

community would not create a substantial risk of bodily injury

to another person or serious damage to the property of another.”

       Nevertheless, acting on a motion filed by the government

over    Locklear’s            objection,        the    district          court    held       in    a

February         9,      2011,         order     that        the        recommendation            was

“dramatically           at    odds     with     the    facts       of    the    case       and    the

psychiatric condition of the defendant.”                           “In short,” stated the

                                                 4
district court, “the report’s conclusion is wholly at odds with

the   facts   and   psychiatric    conclusions   recited   therein.”

Accordingly, the court “order[ed] the medical authorities at FMC

Butner to reconsider the matter and, at a minimum, redraft or

supplement the report.”       In a July 12, 2011, report, however,

the doctors “continue[d] to opine [Locklear] does not meet [the]

criteria for commitment pursuant to [18 U.S.C. § 4246].”

      Locklear then filed a motion for immediate release, which

the government opposed.       The district court held a hearing on

the motion on August 25 and September 2, 2011.       Afterwards, in

an order signed on September 2, 2011, the district court held,

in relevant part, the following:

      After full consideration of the arguments of counsel
      and the reports submitted by [FMC Butner] staff, the
      Court concludes that, given the nature of the crimes
      for which [Locklear] has been indicted and the fact
      that more than seven months have elapsed since
      [Locklear’s]   potential for   dangerousness   to the
      community    has   been  evaluated,    it   would  be
      inappropriate to release [Locklear] from custody at
      this time.

      Accordingly, it is hereby ORDERED that [Locklear]
      again be REMANDED to FMC Butner for thirty (30) days
      to receive further evaluation regarding competency to
      proceed to trial, his potential for dangerousness to
      the community, and his ability to be released under
      conditions   of   confinement imposed  by   the  U.S.
      Probation Office.

      This appeal followed.




                                   5
                                             II.

       The district court’s September 2, 2011, order has two parts

that   we   will       consider     here:          (1)    reevaluation           of     Locklear

regarding        his    mental     competency            to     stand      trial       and    (2)

reevaluation of his dangerousness to the community.                                In light of

our ruling, for purposes of this appeal, we need not consider

the third part of the order, evaluation of his ability to be

released under conditions of confinement imposed by the United

States Probation Office.



                                             A.

       Section        4241    “authorizes     the        commitment         of     a    criminal

defendant who, as a result of a mental disease or defect, lacks

the mental competency to stand trial or undergo post-release

proceedings.”          United States v. Broncheau, 645 F.3d 676, 682 n.8

(4th Cir. 2011).             As such, it “provides a mechanism to secure a

judicial      determination       of    a    criminal          defendant’s         competency,

thereby protecting the defendant’s fair trial rights and the

integrity of judicial proceedings.”                  Id.

       Pursuant to this statute, a court must order a competency

hearing     if    it     has    “reasonable         cause           to   believe       that   the

defendant may presently be suffering from a mental disease or

defect rendering him mentally incompetent to the extent that he

is   unable      to    understand      the   nature           and    consequences        of   the


                                              6
proceedings against him or to assist properly in his defense.”

§ 4241(a).

      “Prior to the date of the hearing, the court may order that

a   psychiatric    or     psychological     examination    of   the   defendant

be conducted[.]”        § 4241(b).         “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.”

§ 4247.

      “[W]e review a district court’s determination of whether to

order    a   competency      examination    for   an   abuse   of   discretion.”

United States v. Martinez-Haro, 645 F.3d 1228, 1232 (10th Cir.

2011).       Here, our careful review of the record leads us to the

conclusion that there is nothing in it to suggest anything has

changed since August 2010—when the doctors at FMC Butner last

determined Locklear was not competent to stand trial—that would

cause     them   now    to    find   otherwise.         Instead,    the   record

establishes that Locklear suffers from a serious mental illness,

which prevents him from working with his counsel or assisting in

his own defense.          Moreover, the medical staff at FMC Butner

determined that there is no substantial probability that he will

regain competency to stand trial in the foreseeable future.                 The

district court accepted this finding in its September 22, 2010,

order, concluding that it would then proceed under § 4246, to


                                       7
obtain a determination of Locklear’s future dangerousness for

purposes of civil confinement.

     On appeal, the government argues that the district court’s

colloquy   with    Locklear   during   the   August   and   September    2011

hearing prompted the court to reconsider its earlier competency

rulings pursuant to § 4241.       Hence, according to the government,

the district court properly ordered a competency reevaluation.

But the record belies this contention.

     Although the district court stated in the August 25, 2011,

hearing, “I think [Locklear is] competent[,]” it continued the

hearing on the matter until September 2, 2011.                 At that time,

after all exchanges between the district court and Locklear had

occurred, the district court stated the following:                “And if I

were going to release him and he was competent, I would put him

under conditions.         So, releasing him while he is incompetent

would be irresponsible not to put him under conditions.”                Thus,

the district court indicated that it did not think that Locklear

was competent.

     And, as both parties recognize, the government’s argument

now that Locklear may be competent is at odds with its position

on September 2, 2011.         Then, after all exchanges between the

district   court    and    Locklear    had   occurred,   the    government’s

counsel stated, “I think [Locklear] is incompetent.”




                                       8
       Even so, on appeal, the government attempts to establish

that    there       was   a    genuine     question         concerning     Locklear’s

competency after the August and September 2011 hearing.                        And it

goes    to   great    lengths    to   explain       how     certain   of   Locklear’s

answers to the district court’s questions suggest that he may be

competent.         We need not, however, address each instance in the

record that, according to the government, indicates Locklear’s

potential competence.           Suffice it to say that it is clear this

was    not   the    district    court’s    belief     after       having   heard   from

Locklear.     Moreover, it was not the reason given by the district

court in the September 2011 order for remanding Locklear to FMC

Butner for further evaluation.

       In that order, although the district court directed that

Locklear     “receive     further     evaluation      regarding       competency    to

proceed to trial,” the court justified its decision by stating

that “given the nature of the crimes for which [Locklear] has

been indicted and the fact that more than seven months have

elapsed since [Locklear’s] potential for dangerousness to the

community     has    been     evaluated,       it   would    be    inappropriate    to

release [Locklear] from custody at this time.”

       In sum, in light of the district court’s comment at the

hearing on September 2, 2011, that Locklear was incompetent, as

well as the purpose that it gave for remanding Locklear for

further evaluation, we are unpersuaded that the district court


                                           9
remanded Locklear to FMC Butner for the purpose of reevaluating

his   competency   to   stand   trial.   We   reject   the   government’s

arguments to the contrary.       But to the extent that the district

court did so without support in the record or any explanation,

such decision was an abuse of discretion.



                                    B.

      Section 4246 provides, in relevant part, the following:

      If the director of a facility in which a person is
      hospitalized certifies that a person in the custody of
      the Bureau of Prisons . . . who has been committed to
      the custody of the Attorney General pursuant to
      section 4241(d), . . . is presently suffering from a
      mental disease or defect as a result of which his
      release would create a substantial risk of bodily
      injury to another person or serious damage to property
      of another, . . . he shall transmit the certificate to
      the clerk of the court for the district in which the
      person is confined.

18 U.S.C. § 4246(a).       “[N]oncompliance with th[is] statute is

not a mere technicality—it is directly contrary to Congress’[s]

command.”     United States v. Charters, 829 F.2d 479, 487 (4th

Cir. 1987).

      Thus, without a certificate from the director of FMC Butner

providing that Locklear “is presently suffering from a mental

disease or defect as a result of which his release would create

a substantial risk of bodily injury to another person or serious

damage to property of another,” § 4246(a), the district court

was without authority to have Locklear held simply because he is


                                    10
not of the same opinion as the doctors charged with making that

determination.      But this appears to be what the district court

attempted to do, as evidenced by its statement toward the end of

the hearing on September 2, 2011.             Specifically, the district

court told Locklear’s counsel that he was “not comfortable” with

releasing Locklear right away and that he did not “accept the

Butner findings.”

     But it is not the province of the district court to make

that decision in the first instance.             Instead, as previously

noted,   Congress    has   conferred   that    authority     only   upon   the

director of FMC Butner.          See id.      Yet, the director of FMC

Butner has refused to make the requisite certification, despite

two opportunities to do so.

     The government does not argue to the contrary.                 In fact,

although acknowledging that it adopted a different approach in

the court below, it appears now to agree that the district court

had no authority to remand Locklear for a third time to be

reevaluated for civil commitment pursuant to § 4246.                We agree

and, for that reason, will reverse and remand.



                                    III.

     Wherefore,     for    the   reasons   stated   above,    the   district

court’s denial of Locklear’s motion for immediate release is

                                                    REVERSED AND REMANDED.


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