                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                  February 16, 2017
                                   TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 16-2167
 v.                                            (D.C. No. 1:15-CR-02486-WJ-1)
                                                          (D.N.M.)
 FELICIA ANDERSON,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, SEYMOUR and KELLY, Circuit Judges.


      Defendant-Appellant Felicia Anderson appeals from the district court’s

order committing her to the Attorney General’s custody under 18 U.S.C.

§ 4241(d). 2 R. 85–90. We have jurisdiction over this non-final order and affirm.

See United States v. Boigegrain, 122 F.3d 1345, 1349 (10th Cir. 1997) (en banc)

(per curiam) (explaining that a § 4241(d) commitment order is immediately

appealable under the collateral order doctrine).




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                    Background

      In June 2015, an officer from the Drug Enforcement Administration

discovered five kilograms of cocaine in Ms. Anderson’s luggage while she was

traveling on a bus from Buffalo, New York, to Phoenix, Arizona. She was

charged with conspiring to distribute cocaine, possession with intent to distribute

cocaine, and aiding and abetting. 18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1),

(b)(1)(C), 846; see 1 R. 15–16.

      Ms. Anderson, now 41 years old, “has had a diagnosis of Mental

Retardation-Mild since the age of 13.” 2 R. 23. She moved for a mental

competency hearing under 18 U.S.C. § 4241 after a retained psychologist

concluded that she was not mentally competent to stand trial. The district court

granted Ms. Anderson’s motion and appointed a psychologist, who concluded that

Ms. Anderson was mentally incompetent and could not be treated. The district

court found that she was not competent to stand trial. It then granted the

government’s motion to commit Ms. Anderson to the custody of the Attorney

General to determine whether she could be restored to competency. See 18

U.S.C. § 4241(d).



                                    Discussion

      We review a district court’s interpretation of a statute de novo. United

States v. Porter, 745 F.3d 1035, 1040 (10th Cir. 2014). “[W]hen the statute’s

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language is plain, the sole function of the courts — at least where the disposition

required by the text is not absurd — is to enforce it according to its terms.”

Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6

(2000) (internal quotation marks and citation omitted).

      The district court concluded that its decision to commit Ms. Anderson was

not discretionary under the plain language of 18 U.S.C. § 4241(d), which states:

      If, after the hearing, the court finds by a preponderance of the evidence
      that the defendant is presently 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 proceedings against him
      or to assist properly in his defense, the court shall commit the defendant
      to the custody of the Attorney General. The Attorney General shall
      hospitalize the defendant for treatment in a suitable facility--
      (1) for such a reasonable period of time, not to exceed four months, as
      is necessary to determine whether there is a substantial probability that
      in the foreseeable future he will attain the capacity to permit the
      proceedings to go forward.

(emphasis added).

      The language in § 4241(d) is unambiguous and mandatory — after finding

that Ms. Anderson was mentally incompetent to stand trial, the district court was

required to commit Ms. Anderson to the Attorney General’s custody. “Unlike the

word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a

requirement.” Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1977

(2016). All circuits that have confronted this issue have so held. United States v.

Magassouba, 544 F.3d 387, 404 (2d Cir. 2008); United States v. Strong, 489 F.3d

1055, 1060–63 (9th Cir. 2007); United States v. Ferro, 321 F.3d 756, 761 (8th

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Cir. 2003); United States v. Donofrio, 896 F.2d 1301, 1303 (11th Cir. 1990);

United States v. Shawar, 865 F.2d 856, 859–61 (7th Cir. 1989).

      Ms. Anderson also argues that if § 4241(d) is read to require mandatory

commitment, it violates her constitutional rights because the improbability of

improvement is necessary to preserve due process. But Ms. Anderson’s argument

misses a large part of the holding in Jackson v. Indiana, 406 U.S. 715 (1972).

The Court explained in Jackson that it is permissible to hold a defendant for a

“reasonable period of time” to examine whether there is a “substantial

probability” that he or she will attain capacity, so long as the procedure has a

“reasonable relation” to the purpose of the commitment. Id. at 738. Section

4241(d) is so limited. And the fact that the language tracks Jackson so closely is

no surprise: the statute was revised in response to the Court’s decision. See

Strong, 489 F.3d at 1061; Donofrio, 896 F.2d at 1302; Shawar, 865 F.2d at 864.

      Ms. Anderson turns the statute on its head, advocating a scheme that

requires an evidentiary hearing about whether her condition was amenable to

treatment and whether, with treatment, there was a substantial probability that she

could attain capacity to stand trial in the foreseeable future. Congress chose

differently. And Ms. Anderson has failed to demonstrate why that scheme

violates the Due Process Clause.

      Though we are sympathetic to the apparent futility involved, only the

Attorney General can exercise the discretion sought by Ms. Anderson.

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AFFIRMED.

            Entered for the Court


            Paul J. Kelly, Jr.
            Circuit Judge




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