                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 8 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-50310

                Plaintiff-Appellee,             D.C. No.
                                                3:18-cr-03066-JLS-1
 v.

SHAWN JAMES SOLEIMANI,                          MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Southern District of California
                  Janis L. Sammartino, District Judge, Presiding

                             Submitted April 3, 2020**
                               Pasadena, California

Before: WARDLAW, MURGUIA, and MILLER, Circuit Judges.

      Shawn James Soleimani appeals the district court’s order committing him to

the Attorney General’s custody for competency restoration under 18 U.S.C. §

4241(d). Soleimani argues that the commitment order violates his constitutional

right to equal protection because other defendants on pre-trial release who


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
are not in competency proceedings but who require mental health services are

allowed to obtain those services on an outpatient basis. We have jurisdiction under

the collateral order doctrine, United States v. Friedman, 366 F.3d 975, 980 (9th

Cir. 2004), and we affirm.

      “The construction or interpretation of a statute is a question of law that we

review de novo.” United States v. Cabaccang, 332 F.3d 622, 624–25 (9th Cir.

2003) (en banc) (citing United States v. Carranza, 289 F.3d 634, 642 (9th Cir.

2002)). We also review de novo the constitutionality of a statute. United States v.

Vongxay, 594 F.3d 1111, 1114 (9th Cir. 2010).

      To succeed on his equal protection claim, Soleimani must first show that the

government treats him differently from similarly situated persons. Pimentel v.

Dreyfus, 670 F.3d 1096, 1106 (9th Cir. 2012) (per curiam); United States v. Lopez-

Flores, 63 F.3d 1468, 1472 (9th Cir. 1995). If this showing is made, we must then

evaluate “under the appropriate level of scrutiny whether the distinction made

between the groups is justified.” Lopez-Flores, 63 F.3d at 1472 (citing Plyler v.

Doe, 457 U.S. 202, 217–18 (1982)).

      A defendant who is incompetent to stand trial is not similarly situated to a

competent defendant with mental health issues on pre-trial release. A finding of

incompetency amounts to a legal determination that the defendant “is unable to

understand the nature and consequences of the proceedings against him or to assist


                                         2
properly in his defense,” 18 U.S.C. § 4241(d), such that if trial were to proceed, it

would constitute a violation of due process, Cooper v. Oklahoma, 517 U.S. 348,

354 (1996). Therefore, an incompetent defendant such as Soleimani is not

similarly situated to defendants on pre-trial release whose mental health issues do

not affect competency to stand trial. Because Soleimani has not identified two

similarly situated groups of people, his equal protection claim fails. Pimentel, 670

F.3d at 1106 (noting that a finding that plaintiff was treated differently than

similarly situated individuals is a threshold showing in the equal protection

analysis).

      AFFIRMED.




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