                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-6161


UNITED STATES OF AMERICA; AUSA USA, Civil Mail Box,

                  Petitioners – Appellees,

             v.

CORIE MCNAIR

                  Respondent – Appellant.



                              No. 09-6207


UNITED STATES OF AMERICA; AUSA USA, Civil Mail Box,

                  Petitioners – Appellees,

             v.

CORIE MCNAIR

                  Respondent – Appellant.


Appeals from the United States District Court for the Eastern
District of North Carolina at Raleigh.  W. Earl Britt, Senior
District Judge. (5:05-hc-00502-BR)


Submitted:    July 10, 2009                  Decided:   August 13, 2009


Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
No. 08-6161, dismissed and No. 09-6207, affirmed by unpublished
per curiam opinion.


Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina,
for Appellant.   George E. B. Holding, United States Attorney,
Anne M. Hayes, Assistant United States Attorney, David T.
Huband, Special Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            In    these       consolidated        appeals,     Corie   McNair    appeals

the district court’s January 7, 2008, order that he remain in

custody of the Attorney General pursuant to 18 U.S.C. § 4246

(2006)     (Appeal      No.     08-6161(L)).            Following      an    evidentiary

hearing,    the    district          court    found     by     clear   and    convincing

evidence    that       McNair,       who    was    originally       committed    to     the

Attorney General’s custody in 2005, continued “to suffer 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).

During    the    pendency       of    his     appeal,    on     McNair’s     motion     for

hearing    to    determine       whether      he    still     met   the     criteria    for

commitment under § 4246, the district court conducted a second

hearing, following which the district court found that McNair

continued to meet criteria for commitment pursuant to § 4246,

but   ordered      that        McNair        be    conditionally        released       from

psychiatric hospitalization.                 McNair’s appeal from this February

2, 2009, order is the companion case on appeal (Appeal No. 09-

6207).

            As     a    preliminary          matter,    McNair’s       pending     appeal

relative    to    the    January       7,    2008,     order    did    not   divest     the

district court’s jurisdiction to order his conditional release,

filed on McNair’s own motion filed July 30, 2008, and entered

                                              3
following a second, separate evidentiary hearing, to review his

continued commitment pursuant to § 4246.                           A committed person has

the statutory right to challenge, and the district court has the

accompanying authority to review, such challenge to commitment

every 180 days.            See 18 U.S.C. § 4247(h) (2006).                      While some of

the    evidence          rendered      relative         to      the    first     hearing    was

necessarily            revisited     in     the       second     hearing,       the   district

court’s         2009    determination       focused        on    McNair’s      condition    and

risk       as     of     the    time      McNair       filed       his   new     motion     for

determination as to whether he still met the § 4246 criteria,

and the focus, evidence, and determinations were distinct, such

that the purposes of the divestiture rule * were not frustrated.

See, e.g., United States v. Phelps, 283 F.3d 1176, 1181 n.5 (9th

Cir. 2002).

                 Secondly,      we   find      that     McNair’s       conditional     release

renders moot the issue raised in his first appeal as to whether

the district court erred in failing to order his conditional

release at the January 7, 2008, hearing.                              As to McNair’s claim

that part of his first appeal was a challenge to the conditions

under which he has now been released and the reasonableness of

the    Government’s            efforts    to      effect     his      release    to   a    state


       *
       See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56,
58 (1982).



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facility, his second appeal affords him the mechanism to raise

such challenge.

               With   regard       to     whether       the   district      court     properly

found on February 2, 2009, that McNair’s mental condition is

such that unconditional release would create a substantial risk

of bodily injury to another or serious damage to the property of

another, that McNair continued to meet criteria for commitment

pursuant to 18 U.S.C. § 4246, and as to whether the district

court       erred    in     finding       that    McNair      continued       to     meet    the

standard for conditional release to an available state facility,

we review such determinations of the district court for clear

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

1992).         A    factual        finding       is    clearly      erroneous        when    the

reviewing court is “left with the definite and firm conviction

that    a    mistake       has     been    committed.”             Anderson     v.    City    of

Bessemer      City,       470    U.S.     564,    573    (1985)     (internal        quotation

marks and citation omitted).

               We    have       reviewed      the      records     of    both     cases,     the

district court’s conclusions, and the briefs and arguments of

the parties, and find that the district court’s determinations

are    supported      by     the    record       and    are   not       clearly    erroneous.

Accordingly, we dismiss, as moot, McNair’s appeal in Appeal No.

08-6161(L),         and    affirm       the   February        2,    2009,    order     of    the

district court which is the subject of Appeal No. 09-6207.                                   We

                                                 5
dispense   with   oral   argument   because   the   facts   and   legal

conclusions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                              No. 08-6161 - DISMISSED

                                              No. 09-6207 - AFFIRMED




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