           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 19-10405                         March 10, 2020
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
SEALED APPELLEE,

                                    Plaintiff - Appellee

v.

SEALED APPELLANT,

                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:19-CV-81


Before BENAVIDES, GRAVES, and HO, Circuit Judges.
PER CURIAM:*
       Appellant appeals the district court’s civil commitment order entered
pursuant to 18 U.S.C. § 4246(d). Finding no plain error, we AFFIRM the
district court’s judgment.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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      I.      BACKGROUND
      On April 11, 2017, Appellant was arrested for criminal trespass at the
Field Office for the Secret Service in Nashville, Tennessee. On October 11,
2017, Appellant returned to that office, and Appellant was seen defacing
parking lot signs with spray paint. An employee of the Wounded Warrior
program, which occupies office space in the same building as the Secret
Service, asked Appellant to stop defacing the parking signs.         Appellant
responded by punching the employee in the face. Appellant then went inside
the office building and when two Secret Service agents followed her, she
accused the Secret Service of holding her captive, shooting her in the head, and
raping her over twelve years ago. Appellant punched one of the agents in the
face and resisted another Secret Service agent’s attempt to restrain her.
      On October 18, 2017, a federal grand jury in Nashville returned an
indictment charging Appellant with one count of assaulting a Special Agent of
the Secret Service and one count of resisting another Special Agent while he
was engaged in the performance of his official duties in violation of 18 U.S.C.
§§ 111(a) and 1114. The next day, Appellant appeared for a detention hearing
before a magistrate judge in district court. The government sought detention
pursuant to 18 U.S.C. § 3142 on the basis that no conditions would reasonably
assure Appellant’s presence in court or the safety of the community. At the
hearing, Appellant, through counsel, stated that she would waive a detention
hearing at this time but reserved the right to raise the issue of release at a
later date.    The magistrate judge granted the government’s motion for
detention, ordered Appellant to be detained in federal custody pending trial,
and committed Appellant to the custody of the Attorney General.
      Subsequently, the government filed a motion to determine competency.
On January 23, 2018, the district court in Nashville granted the government’s
motion and issued a commitment order stating that a psychiatric or
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psychological examination of the Appellant would be conducted to determine
competency. On February 22, 2018, Appellant was moved to the Federal
Medical Center-Carswell (“FMC Carswell”) in Fort Worth, Texas for a
determination of competency. On June 28, 2018, the district court granted the
unopposed motion to continue the trial to October 2, 2018, explaining that the
delay was excluded under the Speedy Trial Act because “the defendant is still
undergoing a competency evaluation.”
      On July 11, 2018, the district court in Nashville granted the
government’s motion for a 4-month extension of time to evaluate Appellant’s
competency to stand trial. The district court’s order provided that the original
commitment had expired on May 9, 2018 and the 4-month extension would
expire on September 9, 2018.
      In a letter dated August 10, 2018, the district court in Nashville was
notified that Appellant had been evaluated by the clinical staff at FMC
Carswell, and in their opinion, Appellant “displays symptoms of mental illness
which significantly impair her rational understanding of the proceedings
against her and her ability to communicate with her attorney with a
reasonable degree of rational understanding.” Additionally, the letter provided
that “she will likely remain not competent to stand trial without receiving
psychotropic medication, which she is currently unwilling to voluntarily accept
on a regular basis.” However, because the staff did not believe Appellant was
a present danger to herself or others, she could not be forcibly medicated. The
letter further provided that the staff believed that psychotropic medication was
an appropriate treatment and that there were “no less-intrusive alternatives
to restore her to competence.” Thus, the staff believed that the Supreme
Court’s precedent required the district court to determine whether Appellant
could be “forcibly medicated for the sole purpose of rendering her competent.”
See Sell v. United States, 539 U.S. 166 (2003).
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       On October 1, 2018, the district court in Nashville denied the
government’s motion to order the involuntary administration of medication to
restore Appellant to competency. The order further stated that the trial that
was scheduled to begin on October 2, 2018, was continued.
       On October 5, 2018, the government filed a notice on the docket of the
Nashville court and copied Appellant’s attorney explaining that because
Appellant had been committed under 18 U.S.C. § 4241(d), she was subject to
civil commitment procedures for dangerousness in 18 U.S.C. § 4246(a).
Further, the staff at FMC Carswell planned to conduct a risk-panel review to
determine whether a full dangerousness evaluation of Appellant was
warranted. If it was warranted, a forensic examiner would be assigned, and a
forensic examination would be conducted. If the examiner determined that the
criteria for a dangerousness commitment were met, a certificate of
dangerousness would be filed with the district court in Fort Worth, Texas. 18
U.S.C. § 4246(a). 1 Finally, the government did not intend to dismiss the
indictment in the Nashville case to ensure Appellant remained in custody
pending completement of the commitment procedures.
       On October 16, 2018, the government filed a notice in the Nashville
district court stating that the risk panel at FMC Carswell had conducted its
risk panel review and recommended that a full § 4246 dangerousness
evaluation be performed by a forensic examiner. The notice also provided that
such an examination may last up to 75 days, with a report being completed
after the examination.
       On January 28, 2019, the government initiated the instant § 4246(a) civil
commitment proceeding by filing a petition accompanied by a certificate of



       1 Section 4246(a) requires that the certificate be filed with the “clerk of the court for
the district in which the person is confined.”
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dangerousness signed by the Warden at FMC Carswell. Also filed with the
petition was a written forensic evaluation from the examiner stating that
Appellant’s release would create a substantial risk of bodily injury to another
person or serious damage to the property of another.
      In response to the government’s filing the certificate of dangerousness,
the district court in Fort Worth appointed counsel for Appellant and scheduled
a hearing for February 5, 2019. On January 31, 2019, counsel for Appellant
moved for a 45-day continuance of the hearing. The district court granted the
motion for continuance and set the hearing for March 26, 2019.
      At the hearing, the government presented the testimony of Dr. Amor
Correa, a psychologist at FMC Carswell, who testified that she had prepared a
forensic evaluation report with respect to Appellant. Dr. Correa testified that
it was her opinion that Appellant’s “release from this facility would presently
create a substantial risk of bodily injury to another person and serious damage
to property of another.”    Dr. Correa also testified that subsequent to the
completion of the report, Appellant had “received additional incident reports
for threatening to kill staff at FMC Carswell” and had “continued to damage
property at FMC Carswell.” The government also introduced into evidence Dr.
Correa’s written report. That same day, the district court found “by clear and
convincing evidence that [Appellant] is presently suffering from a mental
disease or defect as a result of which her release would create a substantial
risk of bodily injury to another person or serious damage to property of
another.” Accordingly, the court ordered that Appellant be “committed to the
custody of the Attorney General of the United States pursuant to the authority
of 18 U.S.C. § 4246(d) and that the Attorney General follow the procedures
contemplated by 18 U.S.C. § 4246(d) and take such steps described in 18 U.S.C.
§ 4246(d) and (e) as are appropriate from time to time.” Finally, the court
ordered the clerk to send a copy of that order to the district court in Nashville,
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where Appellant’s criminal case was pending. Appellant timely filed a notice
of appeal.
      II.    ANALYSIS
      Appellant contends that the district court erred when it held the
commitment proceeding after the commitment order had expired on September
9, 2018. 2 Appellant concedes that this claim was not raised before the district
court, and therefore, it must be reviewed for plain error. Under that standard,
Appellant must show a forfeited plain (clear or obvious) error that affected her
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If such
a showing is made, we have the discretion to correct the reversible plain error,
but should do so only if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id.
      More specifically, Appellant contends the district court plainly erred
when it held the commitment proceeding after the four-month deadline set
forth in 18 U.S.C. § 4241(d)(1) had expired. The statute provides that once a
district court finds that a defendant is incompetent to stand trial, it shall
commit the defendant to the Attorney General who shall hospitalize the
defendant for treatment “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.” § 4241(d)(1). It is undisputed that Appellant
was hospitalized beyond the four-month period that expired on September 9,
2018. However, § 4241(d)(2) provides that a defendant can be hospitalized:
      for an additional reasonable period of time until (A) his mental
      condition is so improved that trial may proceed, if the court finds
      that there is substantial probability that within such additional
      period of time he will attain the capacity to permit the proceedings

      2  Appellant’s brief does not challenge the district court’s grant of a four-month
extension to September 9, 2018.
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      to go forward; or (B) the pending charges against him are disposed
      of according to law; whichever is earlier.

Here, the district court did not find a substantial probability that Appellant’s
mental condition would improve to permit the trial proceeding to go forward.
Also, the criminal charges against Appellant were not resolved; instead, they
remained pending during the relevant time period.                  Thus, subsections
4241(d)(A) and (B) were not applicable.            Nonetheless, § 4241(d) further
provides as follows: “If, at the end of the time period specified, it is determined
that the defendant’s mental condition has not so improved as to permit the
proceedings to go forward, the defendant is subject to the provisions of sections
4246 and 4248.” 3        This language indicates that the determination of
dangerousness under § 4246 occurs after the four-month time period specified
in § 4241(d). In the case at bar, Appellant’s mental condition did not improve
such that she could stand trial, and the government initiated proceedings to
have Appellant evaluated for dangerousness pursuant to § 4246.
      Appellant asserts that the government did not take any action to initiate
a civil proceeding between the September 9, 2018 expiration of the
commitment order and initiating the commitment proceedings on January 28,
2019. Appellant is correct that the government did not file in district court
until January 28, 2019. Nonetheless, prior to the expiration of the deadline it
had been taking action to attempt to restore Appellant’s competence by moving
the court to order involuntary medication. After the district court denied that
motion, the government began taking action to obtain a certificate of
dangerousness from the director of FMC Carswell pursuant under § 4246(a).
Indeed, the government could not initiate the commitment proceedings under



      3  Section 4248 involves the civil commitment of a sexually dangerous person and is
not relevant to the instant case.
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§ 4246 until it obtained a certificate of dangerousness.            This Court has
explained that § 4246(a) “establishes the director’s certification as a necessary
prerequisite to a dangerousness hearing; without the certification, a court
ordinarily lacks statutory authority to conduct the hearing.” United States v.
Bonin, 541 F.3d 399, 401 (5th Cir. 2008).
      Appellant relies on the Second Circuit’s opinion in United States v.
Magassouba, in which it states that the “Attorney General exceeded its
authority in holding Magassouba in custodial hospitalization . . .
approximately three weeks longer than the four months specified in the court’s
unopposed order.”      544 F.3d 387, 410 (2nd Cir. 2008). 4          Magassouba is
inapposite. In that case, unlike the instant case, the Second Circuit expressly
stated that the defendant was not referred for civil commitment pursuant to
§ 4246 as unlikely to attain competency.           Id. at 414.    As we previously
explained, § 4241 indicates that at the end of the time period under subsection
§4241(d), if it is determined that a defendant has not improved such that the
proceedings may go forward, he is subject to the provisions of § 4246. Thus,
the statute contemplates that the § 4246 proceedings occur after the expiration
of the time period in § 4241(d).
      Appellant also cites the Ninth Circuit’s opinion in United States v.
Godinez-Ortiz, however, that opinion offers her no relief and provides support
for the government’s position. 563 F.3d 1022 (9th Cir. 2009). There, the Ninth
Circuit expressly stated that a plain reading of § 4246 provides that the
director of the facility “may determine whether to issue a dangerousness
certificate, and nowhere does § 4246 state that the director’s certificate must
be filed during the person’s commitment under § 4241 or before the § 4241(d)



      4 In any event, the Second Circuit found the error harmless. Magassouba, 544 F.3d
at 414–15.
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evaluation period ends.” Id. at 1031. We agree with the Ninth Circuit that
§ 4246 does not require the dangerousness certificate to be filed during the
time period in § 4241(d). 5
       Finally, Appellant cites United States v. Baker, for the proposition that
filing a certificate of dangerousness after the expiration of the commitment
period violates her due process rights. 807 F.2d 1315 (6th Cir. 1986). In Baker,
the district court held a hearing before the dangerousness certificate was
issued in violation of the procedure set forth in § 4246(a). Id. at 1320–21. As
such, the Sixth Circuit held the district court lacked statutory authority to
commit Baker under § 4246, and he was deprived of notice and a meaningful
opportunity to prepare for the hearing. Id. at 1324. Here, the certificate of
dangerousness was issued prior to the hearing in accordance with § 4246.
Moreover, in the instant case, the district court granted defense counsel’s
motion for a continuance to allow time for preparation for the hearing. Baker
does not support Appellant’s argument.
       Under these circumstances, we find that Appellant has failed to show
that the length of her hospitalization during these proceedings clearly or
obviously violated § 4241(d).
       III.   CONCLUSION
       For the above reasons, the district court’s judgment is AFFIRMED.




       5 Appellant cites United States v. Wood, 469 F.2d 676 (5th Cir. 1972). In that case,
the district court failed to make a finding that Wood was a danger to others pursuant to
§ 4246. Id. at 677. Here, however, the district court expressly found by clear and convincing
evidence that Appellant is suffering from a mental disease as a result of which her release
would create a substantial risk of bodily injury to another person or serious damage to
property of another.
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