United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 3, 2006
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-10149
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
SEALED APPELLANT 1
Defendant-Appellant,
Appeal from the United States District Court for
the Northern District of Texas
(USDC No. 4:03-CV-1233)
_________________________________________________________
Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.
PER CURIAM:*
We remand for the following reasons:
1. 18 U.S.C. § 4246(f) sets forth the procedure for revocation of the
conditional release of a person committed to the custody of the Attorney General
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
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for psychiatric treatment and care. Specifically, § 4246(f) provides:
The court shall, after a hearing, determine whether the person should
be remanded to a suitable facility on the ground that, in light of his
failure to comply with the prescribed regimen of medical, psychiatric,
or psychological care or treatment, his continued release would create
a substantial risk of bodily injury to another person or serious damage
to property of another.
Thus, the statute unambiguously requires that the court make two findings
before revoking a conditional discharge: (1) that the person failed to comply with
his prescribed regimen of medical, psychiatric, or psychological treatment; and (2)
in light of that failure, the person’s continued release would create a substantial
risk of bodily injury to another person or serious damage to property of another.
18 U.S.C. § 4246(f); United States v. Woods, 995 F.2d 894, 896 (9th Cir. 1993).
2. Relying on the district court’s opinion in United States v. Woods, 970 F.
Supp. 711 (D. Minn. 1997), and the language in § 4246(f), the district court held
that it did not need to make a finding on the issue on whether Appellant’s
continued release would create a substantial risk of bodily injury to another
person or serious damage to property of another. Based on that holding, the
district court denied Appellant’s request to continue the hearing for the purpose of
obtaining an independent mental health examination. It specifically stated that
“[h]ad dangerousness been an issue to be decided ..., the court would at this time
continue the hearing to the end of allowing [Appellant] time to obtain an
independent opinion on that issue. Having concluded that the issue was not
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relevant, the court does not consider that there is anything to gain by prolonging
the hearing.” We read Woods and the statutory language of § 4246(f) differently.
3. Although the district court held that whether Appellant’s continued release
would create a substantial risk of bodily injury to another person or serious
damage to property of another was irrelevant, earlier in the same order, the court
stated, “under the record now before the court, the court could, and would if
relevant, find that, in light of respondent’s failure to comply with the prescribed
regimen, her continued release would create a substantial risk of bodily injury to
another person or serious damage to property of another.” This seems to indicate
an alternative holding. However, this alternative holding would be inconsistent
with the district court’s statement in the same order that had “dangerousness” been
an issue, it would “continue the hearing to the end of allowing respondent time to
obtain an independent opinion on that issue.” We therefore remand this case to
the district court to make an express finding on whether Appellant’s continued
release would create a substantial risk of bodily injury to another person or serious
damage to property of another. In making such a finding, the district court should,
consistent with its order, permit the Appellant to have her own examination by a
mental health expert and to present evidence on the issue of whether her continued
release would create a substantial risk of bodily injury to another person or serious
damage to property of another.
The Government’s motion to dismiss is denied as moot.
3
REMANDED WITH INSTRUCTIONS.
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