                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-8230


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MARC MARK GAGNON,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.   James P. Jones, Chief
District Judge. (2:06-cr-00011-jpj-pms-1)


Submitted:    September 10, 2009          Decided:   September 14, 2009


Before KING, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant.     Julie C. Dudley,
United States Attorney, Zachary T. Lee, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                Marc    Mark   Gagnon         appeals     from      the   district      court’s

order denying his motion for conditional release. 1                                On appeal,

Gagnon contends that the court erred in its determinations that

he had not recovered from his mental disease sufficiently to be

conditionally released under a prescribed regimen of treatment,

that the medical staff under whose care Gagnon had been had

insufficient       opportunity           to    properly        assess     the   sincerity   of

Gagnon’s        statements         and        struggled        to    distinguish        between

Gagnon’s progress and goal oriented behavior, and that there was

no   evidence          presented     regarding           the    conditions      under     which

Gagnon     would       be   released.              Finding     no   reversible     error,    we

affirm.

                To be permitted to be released on conditional release

in   the   community        after    a    civil         commitment,       Gagnon   must    have

recovered from his mental disease or defect to such extent that

his release would no longer create a substantial risk of bodily

injury     to    another       person         or    serious     damage     to   property     of

another.        See 18 U.S.C. § 4246(e).                 A district court’s denial of

      1
       The charge upon which Gagnon’s civil commitment pursuant
to 18 U.S.C. § 4243(d) (2006), was based was interstate
stalking, in violation of 18 U.S.C.A. § 2261A (West Supp. 2008).
The charge arose from his serious threats to and obsession with
a well-known actress.    Gagnon has a long history of mental
illness, having been diagnosed with schizophrenia more than ten
years ago.



                                                    2
release under 18 U.S.C. § 4246(d) is a factual determination

that we will not overturn unless it is clearly erroneous.                       See

United     States   v.     Woods,   995   F.2d   894,   896   (9th    Cir.   1993);

United States v. Cox, 964 F.2d 1431, 1433 (4th Cir. 1992).                      “A

finding is ‘clearly erroneous’ when although there is evidence

to support it, the reviewing court on the entire evidence is

left with the definite and firm conviction that a mistake has

been committed.”           United States v. Dugger, 485 F.3d 236, 239

(4th Cir. 2007).

             We conclude that the district court did not clearly

err   in    denying      Gagnon’s     conditional    release.        Despite   the

recommendation        of    the     treatment    team    favoring     conditional

release,    Gagnon’s       treating    psychologist     testified     that   Gagnon

regularly and repeatedly denied any mental illness and refused

to comply with his treatment team’s recommendations regarding

medication.      He testified that Gagnon’s progress at the facility

had “been fairly minimal,” and that Gagnon continues to suffer

from paranoid schizophrenia.               He further attested that Gagnon

occasionally        suppressed      his    delusional     condition      and   his

motivations. 2        Gagnon      still   clearly   maintains   his    delusional

      2
       For example, after Gagnon became aware that the victims
had expressed fear to the court that he would cause them
substantial harm if released, he met with his treatment team
minutes before his hearing and, for the first time, acknowledged
his mental illness.


                                           3
beliefs    regarding     his    relationship       with     the    victim    of   his

violent    threats,     and    attempted   to    contact     her    indirectly     on

several    occasions    while    committed      and   taking       his   medication,

including shortly before making his application for release, and

after claiming to his treatment team that he had no desire to

contact her.

            On these facts, we can find no clear error in the

district court’s denial of conditional release.                     We accordingly

affirm.     We dispense 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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