                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-1338
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                             Osbourne Karl Henriques

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                            Submitted: October 3, 2012
                             Filed: October 29, 2012
                                 ____________

Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
                              ____________

BENTON, Circuit Judge.

      Osbourne Karl Henriques was indicted for drug possession. The district court
found him incompetent to stand trial and committed him to the custody of the
Attorney General under 18 U.S.C. § 4241(d) to determine whether his competency
can be restored. This order was stayed pending appeal. Henriques appeals, arguing
the commitment was unconstitutional. Having jurisdiction under the collateral order
doctrine, this court affirms. See United States v. Ferro, 321 F.3d 756, 759-60 (8th
Cir. 2003) (“[R]eview is allowed in a criminal case . . . where a trial court order
conclusively determines a disputed question that is completely separate from the
merits . . . [and the] right would effectively be lost if not addressed before trial . . . .”).

      A defense psychiatrist determined Henriques was incompetent to stand trial.
The government moved for a psychiatric evaluation. The court ordered Henriques
committed to the Federal Bureau of Prisons for 60 days, where a psychologist
concluded he was competent. Later, a defense neuropsychologist disagreed, finding
him incompetent.

       At the competency hearing (“first hearing”), the district court found Henriques
incompetent. Instead of committing him to the Attorney General’s custody to
determine whether treatment could restore him to competency, the court set a second
hearing to determine commitment options. In its order after the second hearing, the
court stated it was convinced Henriques could never be restored to competency but
committed him to the Attorney General’s custody.

      Henriques argues that his commitment under 18 U.S.C. Section 4241(d) is
unconstitutional under Jackson v. Indiana, 406 U.S. 715 (1972). This court reviews
de novo a constitutional challenge to, and the district court’s interpretation and
application of, a statute. United States v. Trotter, 478 F.3d 918, 920 (8th Cir. 2007);
United States v. Auginash, 266 F.3d 781, 783 (8th Cir. 2001).

      Before holding a competency hearing under Section 4241(a), the court may
order a “psychiatric or psychological” examination and report, “and it may commit
the defendant to a proper institution” for the exam. United States v. Millard-
Grasshorn, 603 F.3d 492, 493 (8th Cir.) (citing 18 U.S.C. §§ 4241(b), 4247(b)), cert.
denied, 131 S. Ct. 348 (2010). After the hearing, if the court finds the defendant
incompetent, it “shall commit the defendant to the custody of the Attorney General
. . . for treatment in a suitable facility . . . for such a reasonable period of time, not to
exceed four months, as is necessary to determine whether there is a substantial

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probability that in the foreseeable future” his competency can be restored. 18 U.S.C.
§ 4241(d). If so, he may be treated for “an additional reasonable amount of time.”
§ 4241(d)(2).

      Henriques claims his commitment violates due process because the court
previously committed him to the BOP (which determined he was competent) and,
based on the expert testimony, the court stated he could never be restored to
competency. He concludes that further commitment serves no purpose and is
therefore unreasonable. See Jackson, 406 U.S. at 738 (“[A] person . . . who is
committed solely on account of his incapacity to proceed to trial cannot be held more
than the reasonable period of time necessary to determine whether there is a
substantial probability that he will attain that capacity in the foreseeable future.”).

       Henriques’s commitment does not violate Jackson. His prior commitment
lasted only 60 days. Cf. id. (holding commitment was unreasonable where the
defendant was “confined for three and one-half years on a record that sufficiently
establishe[d] the lack of a substantial probability [of restoration]”). This initial
commitment was solely for a competency evaluation under Section 4241(b). Thus,
Henriques has never been committed for treatment to determine restorability. See 18
U.S.C. § 4241(d); Millard-Grasshorn, 603 F.3d at 496; Ferro, 321 F.3d at 762.
Accordingly, “the nature and duration of [his] commitment” – treatment for four
months or less – “bear some reasonable relation to the purpose for which [he] is
[being] committed” – to determine restorability. See Jackson, 406 U.S. at 738; cf.
United States v. Ecker, 30 F.3d 966, 967-69 (8th Cir. 1994) (holding commitment for
four years to determine restorability was not a due process violation).

      Henriques emphasizes that the district court has already made a restorability
determination. At the first hearing under Section 4241(a), the court found him
incompetent. Instead of ordering commitment, the court scheduled a second hearing
“to determine if it was reasonable to believe that [he] would ever be [restored to
competency] or whether he should be committed to the custody of the Attorney

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General.” The second hearing was scheduled as a Section “4246(d) and (e)” hearing,
where the court determines if the defendant is dangerous, requiring further
commitment. See id. § 4246(d), (e). But such a hearing cannot occur until after the
court has committed the defendant to the Attorney General’s custody under Section
4241(d), received a certificate from the BOP stating that the defendant is dangerous,
and determined he cannot be restored. Id. §§ 4241(d)(2), 4246(a); see Millard-
Grasshorn, 603 F.3d at 493-94. The district court’s apparent treatment of this second
hearing as a Section 4246(d) and (e) hearing was mistaken — although the court did,
in its decisive sentence, correctly apply 18 U.S.C. Section 4241(d).

       In its order after the second hearing, the court did state that Henriques could
never be restored. However, “the district court does not have the discretion, prior to
a reasonable period of hospitalization in the custody of the Attorney General, to
determine [restorability].” Ferro, 321 F.3d at 761. “When a finding of mental
incompetence is made after the competency hearing mandated by § 4241(a), the
defendant must be committed under § 4241(d) for a restoration-of-competency
evaluation, even if there is evidence that his condition can never improve.” Millard-
Grasshorn, 603 F.3d at 494 (emphasis in original), citing Ferro, 321 F.3d at 761.
The second hearing and the district court’s statement about restorability were
premature. Therefore, the district court properly committed Henriques to the custody
of the Attorney General, “based on the mandatory language of 18 U.S.C. § 4241(d),”
for treatment to determine whether there is a substantial probability that he will be
restored to competency in the foreseeable future.

                                    *******

       The judgment of the district court is affirmed, and the stay of the commitment
order is vacated.
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