                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 14-7665


UNITED STATES OF AMERICA,

                Petitioner - Appellee,

          v.

GARY DEBENEDETTO,

                Respondent - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:14-hc-02172-BR)


Submitted:   July 24, 2015                 Decided:   August 18, 2015


Before KEENAN, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Robert E. Waters,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.     Thomas   G.   Walker,   United  States    Attorney,
Jennifer P. May-Parker, Jennifer D. Dannels, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Gary       Debenedetto          appeals          the       district     court’s         order

committing        him     to    the       custody      of     the    Attorney       General      in

accordance with 18 U.S.C. § 4246(d) (2012).                              We affirm.

      A person may be committed under § 4246 if, after a hearing,

the district court “finds by clear and convincing evidence that

the   person      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.”             18    U.S.C.    § 4246(d).          The

district        court’s    finding         that    the       Government      has    established

dangerousness under § 4246 by clear and convincing evidence will

not   be    overturned         on    appeal       unless      it    is    clearly     erroneous.

United States v. LeClair, 338 F.3d 882, 885 (8th Cir. 2003);

United States v. Cox, 964 F.2d 1431, 1433 (4th Cir. 1992).

      Dr.       Robert    Lucking—a         staff       psychiatrist         at    the   Federal

Medical Center in Butner, North Carolina (“FMC Butner”)—issued a

report concluding that Debenedetto suffers from schizoaffective

disorder and antisocial personality disorder and that his mental

illness is such that his release would pose a substantial risk

of bodily injury to another person or serious damage to the

property of another.                 This opinion was based on the following:

Debenedetto’s          past    history       of       violence—which         encompassed       his

“substantial          history       and    well       established          pattern”      of    both

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verbal     and       physical        aggression           directed         against         other

individuals;       his     mental       illness     and    the     combination        of    that

illness and his alcohol use, factors the report described as

resulting          in       a       “substantial             increased          risk         for

dangerous/aggressive             behavior”;        his    lack    of     insight     into    his

mental illness and refusal of treatment; his history of offenses

involving firearms and other weapons; his lack of “significant

social     support”        and     “meaningful           social     relationships           with

others”; his “poor adjustment” to the institutions to which he

had   been    committed;          and    his    scores       on    violence        assessment

instruments.

      Independent evaluator Dr. Katayoun Tabrizi issued a report

concluding         that     Debenedetto            suffers        from     schizoaffective

disorder     and    adult       antisocial     behavior          and     had   several      risk

factors associated with an increased risk of future violence,

namely: the nature of his untreated mental illness; his history

of aggressive and violent behavior; his lack of social support

and   financial         stability,       and   his       unemployment;         his    lack   of

insight into his mental illness and the need for treatment; and

evidence of “excessive” alcohol use.                       In view of these factors,

Dr. Tabrizi opined that Debenedetto was suffering from a mental

disease as a result of which his release into the community

would    create     a     substantial      risk     of    bodily       injury    to    another

person or serious damage to the property of another.

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      At   a   hearing,      Dr.     Lucking     testified        as    an     expert    in

forensic psychiatry.            Consistent with his report, Dr. Lucking

testified that Debenedetto was then not receiving treatment for

his disorders based on his refusal of treatment, did not believe

he had a mental disorder, had an extensive criminal history, and

had   been     disruptive,       verbally       threatening,           and     physically

assaultive     while    housed       in   institutions        within         the    Federal

Bureau of Prisons.           Dr. Lucking testified further that both he

and a risk assessment panel who evaluated Debenedetto concurred

in the opinion that Debenedetto’s release into the community

would pose a substantial risk of bodily injury to another and

destruction to the property of another, and he summarized the

factors    considered     in    reaching       that   opinion.          Based      on   this

testimony and the forensic reports generated by Dr. Lucking and

Dr. Tabrizi, the district court found by clear and convincing

evidence that Debenedetto satisfied the criteria for commitment

under § 4246(d).

      Debenedetto       argues       on      appeal        that     his       substantial

dangerousness     was     not      established        by    clear      and     convincing

evidence     because    he     had   never     physically         assaulted        officers

while at FMC Butner and because his underlying federal charges

did not involve “any physical assaults or violent behavior.”                             We

reject this argument.           As Debenedetto acknowledges, overt acts

of violence are not required to prove substantial dangerousness

                                           4
in a § 4246(d) case.            United States v. Williams, 299 F.3d 673,

677 (8th Cir. 2002).             Further, Debenedetto ignores information

in   both    Dr.   Lucking’s        and    Dr.    Tabrizi’s         reports         and     Dr.

Lucking’s     hearing      testimony       that       Debenedetto          made      violent

threats and engaged in physically aggressive behavior connected

to his mental illness.

     We also reject Debenedetto’s remaining arguments.                               Even if

Debenedetto had not experienced auditory hallucinations and was

not experiencing paranoia or persecutory or delusional beliefs

at the time of the hearing, the district court was entitled to

consider     his   risk    of    dangerousness         in      light     of    his    entire

symptom profile, not just its most recent manifestation at the

time of the commitment hearing.                See id.          Additionally, even if

Debenedetto is intelligent and has a valid fear about allergies

to antipsychotic medications, it is plain from the record that

he suffers from psychotic mental illness with symptoms directly

connected     to   aggressive       behavior      and      a    substantial          risk    of

bodily    injury   or     serious    damage      to   the       property       of   another.

Further, even if Dr. Lucking’s report is not a “crystal ball” of

future behavior as Debenedetto claims, a finding of substantial

risk under § 4246 “may be based on any activity that evinces a

genuine     possibility     of    future    harm      to       persons    or    property.”

United States v. Sahhar, 917 F.2d 1197, 1207 (9th Cir. 1990).



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     Based    on     the     entirety       of   Debenedetto’s       behavioral,

psychiatric, and symptom profile, the district court did not

clearly err in its determination that Debenedetto suffers from a

mental disease as a result of which his release would create a

substantial risk of bodily injury to another or serious damage

to the property of another.

     Accordingly,      we     affirm     the     district     court’s       order.

We dispense   with    oral    argument      because    the   facts    and    legal

contentions   are    adequately    presented      in   the   materials      before

this court and argument would not aid the decisional process.



                                                                        AFFIRMED




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