                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           MAR 03 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S . CO U RT OF AP PE A LS

UNITED STATES OF AMERICA,                        No. 09-30238

             Plaintiff - Appellee,               D.C. No. 6:08-cr-00005-DWM-1

  v.
                                                 MEMORANDUM *
LANCE KEVIN KOLESAR,

             Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                      Argued and Submitted February 5, 2010
                               Seattle, Washington

Before: ALARCMN, W. FLETCHER and RAWLINSON, Circuit Judges.

       Defendant Lance Kevin Kolesar appeals from the district court's June 8,

2009 order recommitting him to the custody of the Attorney General for the

purpose of conducting a dangerousness evaluation pursuant to 18 U.S.C.

y 4246(b). A magistrate judge had previously determined under y 4241(d) that




         *This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Kolesar's condition had not so improved as to permit the proceedings to go

forward and recommended that the district court find that he be subject to the

provisions of y 4246.

      The district court order from which Kolesar appeals is not an appealable

order for the purposes of 28 U.S.C. y 1291. In United States v. Ohnicµ, 803 F.2d

1485 (9th Cir. 1985), we held that '[o]nly after [a y 4246(a)] dangerousness

hearing does a commitment order under section 4246 become final. At that point,

review is available under 28 U.S.C. y 1291.' Id. at 1486.

      Here, the director of the medical facility where Kolesar is hospitalized has

already issued a dangerousness certificate as required by y 4246(a). Furthermore,

the district court for the Western District of Missouri, the district where Kolesar is

presently confined, has already held a y 4246(a) dangerousness hearing on which it

has yet to rule. Thus, the Missouri district court's determination pursuant to that

dangerousness hearing will be a final order from which Kolesar can appeal.

      DISMISSED.




                                           2
                                                                            FILED
U.S. v. Kolesar, Case No. 09-30238                                           MAR 03 2010
Rawlinson, Circuit Judge, concurring:                                    MOLLY C. DWYER, CLERK
                                                                          U.S . CO U RT OF AP PE A LS

     I concur in the determination that this case should be dismissed.
