NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 03 2010
MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
UNITED STATES OF AMERICA, No. 09-30238
Plaintiff - Appellee, D.C. No. 6:08-cr-00005-DWM-1
v.
MEMORANDUM *
LANCE KEVIN KOLESAR,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted February 5, 2010
Seattle, Washington
Before: ALARCMN, W. FLETCHER and RAWLINSON, Circuit Judges.
Defendant Lance Kevin Kolesar appeals from the district court's June 8,
2009 order recommitting him to the custody of the Attorney General for the
purpose of conducting a dangerousness evaluation pursuant to 18 U.S.C.
y 4246(b). A magistrate judge had previously determined under y 4241(d) that
*This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Kolesar's condition had not so improved as to permit the proceedings to go
forward and recommended that the district court find that he be subject to the
provisions of y 4246.
The district court order from which Kolesar appeals is not an appealable
order for the purposes of 28 U.S.C. y 1291. In United States v. Ohnicµ, 803 F.2d
1485 (9th Cir. 1985), we held that '[o]nly after [a y 4246(a)] dangerousness
hearing does a commitment order under section 4246 become final. At that point,
review is available under 28 U.S.C. y 1291.' Id. at 1486.
Here, the director of the medical facility where Kolesar is hospitalized has
already issued a dangerousness certificate as required by y 4246(a). Furthermore,
the district court for the Western District of Missouri, the district where Kolesar is
presently confined, has already held a y 4246(a) dangerousness hearing on which it
has yet to rule. Thus, the Missouri district court's determination pursuant to that
dangerousness hearing will be a final order from which Kolesar can appeal.
DISMISSED.
2
FILED
U.S. v. Kolesar, Case No. 09-30238 MAR 03 2010
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
I concur in the determination that this case should be dismissed.