UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-7150

TYRONE SIMMONS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CA-95-322-5-BO)

Submitted: March 19, 1996

Decided: April 1, 1996

Before MURNAGHAN and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

G. Alan DuBois, Assistant Federal Public Defender, Raleigh, North
Carolina, for Appellant. Janice McKenzie Cole, United States Attor-
ney, Barbara D. Kocher, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Tyrone Simmons seeks review of the district court's order finding
that he suffers from a mental disease or defect requiring custody of
care or treatment in a suitable facility pursuant to 18 U.S.C. § 4245
(1988). Simmons does not challenge the court's finding that he suf-
fers from a mental disease, and the record is uncontradicted on the
point that he suffers from paranoid schizophrenia. He contends, how-
ever, that the court erred by finding that his disease was so debilitat-
ing that it warranted transferring him to a psychiatric hospital against
his will. He argues that the primary purpose of such institutionaliza-
tion will be to forcibly subject him to psychotropic medication, and
avers that such treatment is unnecessary, relying on the testimony of
Dr. Owens, Simmons's treating psychiatrist, that it is possible to
maintain him in the general population without such medication.

To justify Simmons's involuntary commitment, the Government
had to prove, by a preponderance of the evidence, that he suffers from
a mental disease or defect which requires custody of care or treatment
in a suitable facility. See United States v. Baker, 45 F.3d 837, 840 (4th
Cir. 1995). As with the issue of whether Simmons suffers from a
mental disease, the medical evidence of record is uncontradicted as
to whether Simmons's disease requires custody and treatment in a
psychiatric facility. Both Dr. Owens, and Dr. Royal, a court appointed
psychiatrist, agreed that Simmons needs such treatment. We therefore
find that the district court's determination that the Government car-
ried its burden on this point was not clearly erroneous. See United
States v. Steil, 916 F.2d 485, 487 (8th Cir. 1990) (citing standard of
review).

As for the possibility that Simmons will involuntarily receive psy-
chotropic medication during his commitment, we note that the record
does not disclose that this decision has yet been made. Moreover, the

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issue was not passed on below, and is improperly raised for the first
time on appeal. See Singleton v. Wulff, 428 U.S. 106, 120 (1976). We
therefore decline to consider this issue.

Accordingly, the order of the district court is affirmed. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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