                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 13-6162


UNITED STATES OF AMERICA,

                 Petitioner - Appellee,

          v.

JOHN MCDONALD,

                 Respondent - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:97-hc-00152-BR)


Submitted:   July 2, 2013                  Decided:   July 12, 2013


Before KING, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James B. Craven, III, Durham, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Jennifer D. Dannels, 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Unpublished opinions are not binding precedent in this circuit.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:

      In this appeal, John McDonald, who has been in the custody

of the Attorney General almost continuously since 1997 pursuant

to 18 U.S.C. § 4246, argues that the district court erred by

finding     that       he    continued      to       meet    the   criteria      for    civil

commitment because the court had not received for consideration

a   plan    for       McDonald’s        conditional         release,    as    required       by

§   4246.        Upon       our   review     of      the    record     and    the    parties’

arguments, we affirm the district court’s judgment.



                                              I.

      In    August       1994,      McDonald         was    convicted    on     charges      of

assaulting a federal officer, and he was sentenced to a three-

year term of imprisonment.                 McDonald, who has a long history of

mental      illness         and    suffers       from       Schizoaffective         Disorder,

Bipolar     Type,      was    committed      to      the    custody     of    the    Attorney

General for care and treatment while incarcerated, pursuant to

18 U.S.C. § 4244.                 In June 1997, near the expiration of his

prison term, McDonald was civilly committed pursuant to § 4246

on the basis that he was “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.”                   18 U.S.C. § 4246(a).



                                                 2
      In December 2001, the district court conditionally released

McDonald, who was subject to certain requirements of care and

treatment        upon    his    release.             In     December     2002,     after     he

“exhibit[ed] loud, intrusive, and disrespectful behavior” toward

the   staff      and    residents    of    the        group    home     in    which     he   was

living,     the        district    court        revoked        McDonald’s        conditional

release and ordered that he be returned to the custody of the

Attorney General.              In February 2004, the district court again

conditionally discharged McDonald from civil commitment, but his

release was revoked in September 2004 after he engaged in a

pattern     of     threatening      and    other          disruptive     behavior       toward

residents and staff of the psychiatric center in which he was

residing.

      At    McDonald’s         request,     the           district     court     convened     a

hearing in December 2012 to determine whether McDonald still met

the criteria for civil commitment under § 4246.                                A few months

before the district court ordered this hearing, Ralph Newman,

M.D.,   a   staff       psychiatrist       at       the    Federal    Medical     Center     in

Butner,     North       Carolina    (FMC    Butner),          the     facility     in    which

McDonald      is   confined,       prepared         an     annual    report    (the     annual

report)     concerning          McDonald’s          mental     health.          Dr.     Newman

concluded in the annual report that it would be appropriate to

release McDonald from civil commitment “under a planned regimen

of care and supervision.”             After the preparation of this report,

                                                3
and more than one month before the December 2012 hearing, a

staff social worker at FMC Butner sent to the United States

Probation    Office    (USPO)    in   Syracuse,     New     York   a   proposed

conditional release plan for McDonald.             The USPO did not act on

the proposed release plan before the district court’s hearing. 1

      At the hearing, Dr. Newman was the sole witness presented

by either party.          During his testimony, Dr. Newman reiterated

the conclusion from his annual report that McDonald could be

released to the community “with an appropriate controlling plan”

of   care   and   supervision.     Dr.    Newman   further    testified    that

McDonald’s release plan had been sent to the probation office

but the plan had not yet been “signed off on by everybody.”

      Following     Dr.    Newman’s   testimony,      the    district     court

concluded that because it had not received the release plan, the

court was required, “purely as a matter of procedure,” to find

that McDonald “still [met] the criteria for commitment” under §

4246.” 2    Nevertheless, the court indicated that it likely would


      1
       McDonald states in his brief that a U.S. Probation Officer
“gave [the plan] her blessing and approval” in late January
2013, but there is no evidence in the record supporting this
assertion.
      2
       McDonald’s counsel did not challenge during the hearing
the district court’s conclusion that the court could not release
McDonald without first receiving and approving the conditional
release plan.    Instead, McDonald’s counsel expressed optimism
that the release plan would be presented to the court
“hope[fully] within the next day or so . . . [m]aybe next week.
(Continued)
                                      4
approve the release plan upon its submission to the court.                                    The

court later entered an order finding that McDonald continued to

meet       the    criteria      for   civil      commitment        because     he    currently

“suffer[s] 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.”

McDonald         timely    filed      a   notice       of    appeal     from   the    district

court’s judgment. 3



                                                 II.

       We     review      for    clear     error       the    district    court’s         factual

determination under § 4246 denying a person’s release from civil

confinement.           See United States v. Cox, 964 F.2d 1431, 1433 (4th

Cir. 1992).           To discharge a person who has been subject to civil

commitment under § 4246, 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




I hope it’s no later than next week.”         McDonald’s counsel
further stated at the hearing that he “hope[d] that the
government will expedite [the matter] as much as possible.”
However, the record before us does not show that a release plan
ultimately was submitted to the court for review.
       3
       The district court later set a hearing date of October 3,
2013, for a new proceeding in which McDonald’s civil commitment
status again will be evaluated.



                                                 5
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).

      McDonald argues that the district court erred in concluding

that he continues to meet the criteria for confinement under §

4246.      After reviewing the record and affording the district

court the deference required under our review for clear error,

we    disagree       with   McDonald’s        argument.        The    annual       report

prepared by Dr. Newman, and the testimony he provided during the

hearing,       established      that    McDonald    would     not    be    a    danger   to

himself or others upon his release only if he were subject to

“an   appropriate         controlling       plan”   of    care      and    supervision.

However, such a plan had not been certified to the district

court     by   the     Warden   at   FMC    Butner, 4 nor     had    the       court   been


      4
       As a requirement for discharge from civil commitment, the
“director of the facility in which a person is hospitalized,”
here, the Warden at FMC Butner, must file a certificate with the
clerk of the court that ordered the commitment.       18 U.S.C.
4246(e).    That certificate must state that the Warden at FMC
Butner has determined that McDonald “has recovered from his
mental disease or defect to such an extent that his release
would no longer create a substantial risk of bodily injury to
another person or serious damage to property of another.”    Id.
(Continued)
                                             6
afforded   the     opportunity    to    review    a     plan    for   McDonald’s

conditional release as of the December 2012 hearing.

     Section      4246(e)(2)(A)    mandates      that    the    district      court

determine that such a conditional release plan is “appropriate”

before the court may order the conditional release of a person

who has been civilly committed.            Because the district court was

not presented with a conditional release plan for review and

approval, the court did not err in holding that McDonald should

remain in the custody of the Attorney General.

     We    observe    the   troubling      circumstance        that   McDonald’s

release    from     civil   commitment      has    been        delayed   by     the

government’s      unexplained    failure   to    process   the     release     plan

submitted by FMC Butner staff to the USPO in November 2012, in

time to be considered by the district court at the December 2012

hearing.    However, McDonald did not seek, either in this Court

or in the district court, an order compelling the government to

finalize and approve McDonald’s release plan.                  Nor did McDonald

request that the district court withhold its determination in

the present case pending receipt of the release plan.




In proceedings concerning a conditional release from civil
commitment, as is the case here, the Warden at FMC Butner must
also certify to the court that McDonald’s conditional release
plan is appropriate. 18 U.S.C. § 4246(e)(2)(A).



                                       7
      We   further    observe       that   the     district     court    has    granted

McDonald’s     request   for    a    new    hearing,       as   permitted      under   18

U.S.C. § 4247(h), and that this hearing is scheduled to take

place on October 3, 2013.             We strongly advise that, in advance

of this upcoming hearing, the government work with the Warden at

FMC   Butner     to    expedite       the        processing      of     the    Warden’s

certification to enable the district court to consider the plan

as required by § 4246(e)(2).                    We affirm the judgment of the

district    court,    and   dispense       with     oral    argument     because       the

facts and legal contentions have been adequately presented and

argument would not aid the decisional process.

                                                                               AFFIRMED




                                            8
