                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAY 25 2000
                                      TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

                Plaintiff-Appellee,                       No. 99-2319
           v.                                                 D. N.M.
 ALFRED RAY BRANNON,                                (D.C. No. CR-99-865-SC)

                Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before HENRY , PORFILIO , Circuit Judges, and         WEINSHIENK , District
Judge. **



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, ordered submitted without oral argument.



       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

       **
          The Honorable Zita Weinshienk of the United States District Court for
the District of Colorado, sitting by designation.
       Alfred Ray Brannon appeals the district court ordering referring him

for a mental health evaluation pursuant to 18 U.S.C. §§ 4241(a), 4242, 4247, and

Fed. R. Crim. P. 12.2(c). His initial commitment period of 45 days has expired.

Nevertheless, he still challenges the authority of the district court to order the

mental health examination.

       We note at the outset, that although Mr. Brannon’s case appears moot in

that he is no longer in the custody of a federal mental health facility, and there is

no further relief we can afford him, there is precedent to suggest that his situation

is justiciable. In United States v. Deters , 143 F.3d 577, 578 n.2 (10th Cir. 1998),

we held that review of section 4247(b) commitment orders that have been

terminated may present situations “capable of repetition, yet evading review.”

United States v. Boigegrain , 122 F.3d 1345, 1347 n.1 (10th Cir. 1997) (noting

conclusion of defendant’s commitment order entered under § 4241(d) did not

moot a justiciable case or controversy) (en banc) (per curiam);   but see United

States v. Weston , 194 F.3d 145, 147 (D.C. Cir. 1999) (noting, in the context of a

§ 4241 order where the defendant did not submit to the examination, “‘if []

event[s] occur while a case is pending on appeal that make[] it impossible for the

court to grant any effectual relief whatever to a prevailing party, the appeal must

be dismissed [as moot]’”) (quoting    Church of Scientology of Calif. v. United




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States , 506 U.S. 9, 12 (1992)). Thus, giving Mr. Brannon the benefit of the

doubt, we will review his appeal following         Deters .

       Our standard of review was set forth in       Deters : we “‘should give

appropriate deference not only to [the district court’s] findings but also to the

conclusion reached by the district court’ regarding the appropriateness of

confinement.” 143 F.3d at 584 (quoting       In re Newchurch , 807 F.2d 404, 412 (5th

Cir. 1986)). The district court’s findings of fact are reviewed for clear error.      See

In re Newchurch , 807 F.2d at 412.

       After thorough review, we find no error, clear or otherwise, in the district

court’s careful evaluation and determination of the facts. The district court’s

conclusion as to its inherent authority to order a mental health examination was

“reached in [its] sound exercise of judgment founded on the facts.”        1
                                                                               Likewise,

we find no error in its conclusions of law, especially under the deferential

standard.

       Consequently, with the exception of only the district court’s conclusion that

it may order a psychiatric examination under Rule 12.2(c), we affirm for

substantially the same reasons articulated by the district court in its October 22,



       1
         Id. Because in this case the court has the inherent authority to order a
mental health evaluation, we have no need to reach the issue whether under Fed.
R. Crim. P. 12.2(c) authorizes the court to order a mental health exam in the
absence of the defense of insanity.

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1999 order, see Rec. vol. IX, doc. 53, and for that reason we decline to articulate

the same analysis here.



                                               Entered for the Court,



                                               Robert H. Henry
                                               Circuit Judge




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