United States v. Sonia Quintero

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10300
Plaintiff-Appellee,
D.C. No.
v. 4:17-cr-01895-
JAS-LAB-1
SONIA QUINTERO,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding

Argued and Submitted November 17, 2020
Phoenix, Arizona

Filed April 29, 2021

Before: Richard C. Tallman, Jay S. Bybee, and
Bridget S. Bade, Circuit Judges.

Opinion by Judge Bybee
2 UNITED STATES V. QUINTERO

SUMMARY*

Criminal Law

The panel affirmed the district court’s order committing
Sonia Quintero, who was found incompetent to stand trial on
federal drug charges, to the custody of the Attorney General
pursuant to 18 U.S.C. § 4241(d) for inpatient assessment of
her potential for restoration to competency.

Quintero argued that the district court should have
ordered evaluation and treatment in an outpatient facility and
that her commitment violates her statutory and constitutional
rights.

The panel held that § 4241(d) mandates that district courts
commit mentally incompetent defendants to the custody of
the Attorney General for treatment, without discretion for the
court to order a particular treatment. The panel rejected
Quintero’s contention that the Attorney General’s and the
Bureau of Prisons’ policies contravene § 4241(d) in violation
of the Take Care Clause of Article II of the Constitution and
general separation of powers principles.

The panel reaffirmed that § 4241(d) does not violate
Quintero’s substantive due process rights, and held that
mandatory commitment under § 4241(d) comports with the
requirements of procedural due process.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. QUINTERO 3

The panel rejected Quintero’s three arguments under the
equal protection component of the Due Process Clause of the
Fifth Amendment: (1) that § 4241(d) denies her equal
protection because it imposes a less stringent standard for
confinement than the Bail Reform Act; (2) that mentally
incompetent pretrial defendants are subject to less stringent
standards for commitment than convicted persons who,
having served their sentence, are going to be committed
civilly; and (3) that § 4241(d) violates her right to equal
protection because federal pretrial defendants are subject to
a less stringent commitment standard than Arizona state
defendants.

The panel reviewed for plain error Quintero’s argument,
raised for the first time on appeal, that § 4241(d) could create
a conflict of interest for counsel, inconsistent with the Sixth
Amendment, because of the tension between dooming a client
to lengthy hospitalization and allowing an incompetent client
to stand trial. The panel observed that Quintero failed to
allege or demonstrate any actual conflict of interest for her
own counsel, and held that mandatory commitment under
§ 4241(d) does not violate the Sixth Amendment.

The panel rejected Quintero’s argument that mandatory
confinement of incompetent defendants pursuant to § 4241(d)
violates the Eighth Amendment’s prohibition of excessive
bail.

The panel declined to reach, in this criminal appeal,
Quintero’s arguments that mandatory commitment pursuant
to § 4241(d) violates the Rehabilitation Act and the
Americans with Disabilities Act.
4 UNITED STATES V. QUINTERO

COUNSEL

M. Edith Cunningham (argued) and James D. Smith,
Assistant Federal Public Defenders; Jon M. Sands, Federal
Public Defender; Office of the Federal Public Defender,
Tucson, Arizona; for Defendant-Appellant.

Shelly K.G. Clemens (argued), Assistant United States
Attorney; Christina M. Cabanillas, Deputy Appellate Chief;
Michael Bailey, United States Attorney; United States
Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.

OPINION

BYBEE, Circuit Judge:

Sonia Quintero was found incompetent to stand trial and
was committed to the custody of the Attorney General
pursuant to 18 U.S.C. § 4241(d) for assessment of her
potential for restoration to competency. Under Department
of Justice policy, Quintero was to be hospitalized in an
inpatient facility for evaluation and treatment. Quintero
argues that the district court should have ordered evaluation
and treatment in an outpatient facility and that her
commitment violates her statutory and constitutional rights.

We affirm the district court’s commitment order.

I. PROCEDURAL HISTORY

In December 2017, Quintero was charged in the District
of Arizona with conspiracy to possess with intent to distribute
and possession with intent to distribute marijuana, in
 UNITED STATES V. QUINTERO 5

violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(vii).
During pretrial proceedings, Quintero filed a motion to
determine competency, along with a neuropsychological
evaluation concluding that Quintero was incompetent to stand
trial due to cognitive impairment resulting from severe
traumatic brain injury and that she was not restorable to
competency. The magistrate judge ordered a second
psychiatric evaluation, which concluded that Quintero was
incompetent to stand trial but was restorable to competence.

After an evidentiary hearing with testimony from both
evaluators, the magistrate judge agreed that Quintero was not
competent to stand trial, but determined that she was likely
restorable to competence.1 Quintero objected to mandatory
commitment for competency restoration and instead
requested outpatient treatment. However, the magistrate
judge found that commitment was mandated by 18 U.S.C.
§ 4241(d) and ordered her committed to the custody of the
Attorney General.

Quintero objected to the magistrate judge’s order, but the
district court overruled the objection. Quintero timely
appealed.

1
We note that the second half of the magistrate judge’s finding
exceeded the scope of § 4241(d), which only authorizes the court to
determine whether the defendant is suffering from a mental disease or
defect that renders him incompetent to stand trial, not whether the
defendant is restorable to competency at that point in the proceedings.
This extraneous finding does not affect our analysis here.
6 UNITED STATES V. QUINTERO

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 and
pursuant to the collateral order doctrine. United States v.
Friedman, 366 F.3d 975, 980 (9th Cir. 2004). We review
challenges to the constitutionality of a statute and questions
of statutory construction de novo. United States v. Strong,
489 F.3d 1055, 1060 (9th Cir. 2007); United States v.
Kowalczyk, 805 F.3d 847, 856 (9th Cir. 2015).

III. DISCUSSION

The Insanity Defense Reform Act (IDRA), 18 U.S.C.
§§ 17, 4241–47, governs pretrial competency evaluation and
restoration. Section 4241 provides in relevant part:

If, after the hearing, the court finds by a
preponderance of the evidence that the
defendant is presently suffering from a mental
disease or defect rendering him mentally
incompetent to the extent that he is unable to
understand the nature and consequences of the
proceedings against him or to assist properly
in his defense, the court shall commit the
defendant to the custody of the Attorney
General. The Attorney General shall
hospitalize the defendant for treatment in a
suitable facility–

(1) for such a reasonable period of time,
not to exceed four months, as is necessary
to determine whether there is a substantial
probability that in the foreseeable future
 UNITED STATES V. QUINTERO 7

he will attain the capacity to permit the
proceedings to go forward; and

(2) for an additional reasonable period of
time until–

(A) his mental condition is so
improved that trial may proceed, if the
court finds that there is a substantial
probability that within such additional
period of time he will attain the
capacity to permit the proceedings to
go forward; or

(B) the pending charges against him
are disposed of according to law;

whichever is earlier.

18 U.S.C. § 4241(d).

Quintero raises seven distinct challenges to her mandatory
inpatient commitment under § 4241(d). She argues:
(1) § 4241(d) grants the district court discretion to order a
specific form of treatment, and the policies of the Attorney
General and Bureau of Prisons (BOP) violate the
Constitution; mandatory commitment violates (2) due
process, (3) equal protection, (4) fundamental fairness, (5) the
Sixth Amendment, and (6) the Eighth Amendment; and
(7) mandatory commitment discriminates on the basis of
disability in violation of the Rehabilitation Act and the
Americans with Disabilities Act. None of these arguments is
persuasive.
8 UNITED STATES V. QUINTERO

A. Statutory Construction

1. District Court Discretion under 18 U.S.C. § 4241

Quintero argues that § 4241(d) grants the district court
discretion to order outpatient competency restoration
assessment and treatment. This contention is meritless. The
statute is clear that upon finding a defendant mentally
incompetent to stand trial, “the court shall commit the
defendant to the custody of the Attorney General” and that
“[t]he Attorney General shall hospitalize the defendant for
treatment in a suitable facility.” 18 U.S.C. § 4241(d); see
Strong, 489 F.3d at 1057 (holding that mandatory
commitment under § 4241(d) does not violate due process).
The district court’s responsibility is to make the appropriate
determination that the defendant is mentally incompetent.
The court has no role in determining the “suitable facility.”

Other provisions of the IDRA support this construction of
§ 4241(d). For an initial psychological evaluation of a
pretrial defendant—the step before commitment for
competency restoration evaluation—Congress employed
almost identical language to § 4241(d), except that it used the
permissive verb “may” in § 4247(b). See 18 U.S.C.
§ 4247(b) (“[T]he court may commit the person to be
examined for a reasonable period . . . to the custody of the
Attorney General for placement in a suitable facility.”)
(emphasis added)). And the IDRA provides that upon
restoration of competency, “the court shall order his
immediate discharge from the facility in which he is
hospitalized.” Id. § 4241(e) (emphasis added). In order for
Quintero’s proposed reading of § 4241(d)—that “shall”
means “may”—to be consistent, we would have to read
§ 4241(e) to be permissive as well, a reading we are confident
 UNITED STATES V. QUINTERO 9

Quintero would not support. If there is discretion here, it
rests with the Attorney General, as elsewhere the IDRA
provides that the Attorney General “shall . . . consider the
suitability of the facility’s rehabilitation programs in meeting
the needs of the person” and “may contract with a State, a
political subdivision, a locality, or a private agency for the
confinement, hospitalization, care, or treatment of, or the
provision of services to, a person committed to his custody.”
Id. § 4247(i)(A), (C).

Quintero attempts to draw inferences from definitions of
“custody” and “hospitalize” in other statutes. We need not
consider these, because any such inferences are irrelevant
where, as here, the language of the statute is unambiguous.
Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999)
(“[W]here the statutory language provides a clear answer,
[the inquiry] ends there . . . .”).

We hold that § 4241(d) mandates that district courts
commit mentally incompetent defendants to the custody of
the Attorney General for treatment, without discretion for the
court to order a particular treatment setting.

2. Attorney General and Bureau of Prison Policies

Quintero next asserts that under Attorney General and
Bureau of Prison (BOP) policies,2 defendants are

2
The BOP policies referenced by Quintero are quite general.
“‘[H]ospitalization in a suitable facility’ includes the [BOP’s] designation
of inmates to medical referral centers or correctional institutions that
provide the required care or treatment.” 28 C.F.R. § 549.41; see also BOP
Program Statement P5070.12, at 6–7 (Apr. 16, 2008) (“[I]nmates requiring
hospitalization by statute . . . will be designated to a Medical Referral
Center.”).
10 UNITED STATES V. QUINTERO

automatically hospitalized and that this contravenes her
construction of the statute in violation of the Take Care
Clause of Article II and general separation of powers
principles. See U.S. Const. art. II, § 3. Quintero offers no
particular assessment of the Take Care Clause or the
separation of powers. Rather, she asserts that the phrase “as
is necessary” in § 4241(d)(1) requires the Attorney General
to consider the need for hospitalization to achieve
competency restoration. Because, in her view, the policies
are inconsistent with the statute, Quintero argues that the
Attorney General and BOP have failed to take care that the
statute be faithfully executed. We find no merit in these
arguments.

Section 4241(d) grants the Attorney General the
discretion to “hospitalize” the defendant for treatment in a
“suitable facility.” The IDRA defines “suitable facility” as
treatment in a “facility that is suitable to provide care or
treatment given the nature of the offense and the
characteristics of the defendant.” Id. § 4247(a)(2). The
statute does not enjoin the Attorney General to choose the
least restrictive treatment, a judgment that would constrain
the Attorney General’s options and potentially open this
process to endless litigation over the range of appropriate
restorative medical treatments.

Quintero also points to the phrase “as is necessary” in
§ 4241(d)(1) as constraining the Attorney General’s choice of
treatment. This misreads the statute. Section 4241(d)(1)
instructs the Attorney General to hospitalize a mentally
incompetent defendant “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
probability that in the foreseeable future he will attain the
 UNITED STATES V. QUINTERO 11

capacity to permit the proceedings to go forward.” 18 U.S.C.
§ 4241(d)(1) (emphasis added). The phrase “as is necessary”
modifies “reasonable period of time,” not “suitable facility.”
It is a temporal limitation, not a mandate to consider the
necessity of inpatient treatment.

The history of the IDRA supports this conclusion.
Congress enacted § 4241(d) in response to the Supreme
Court’s decision in Jackson v. Indiana, 406 U.S. 715 (1972).
Indiana’s incompetency statute authorized indefinite
commitment for mentally incompetent defendants. The
Supreme Court held that a defendant “cannot be held more
than the reasonable period of time necessary to determine
whether there is a substantial probability that he will attain []
capacity in the foreseeable future.” Id. at 738. The temporal
limitation Congress added to § 4241(d) remedied this defect
in the federal statute. See Strong, 489 F.3d at 1061
(“[Section] 4241(d) was enacted in response to the Jackson
decision and echoed Jackson’s language.”). The “as is
necessary” language instructs the Attorney General to give
individualized consideration of the period of time—with an
outer limit—necessary to assess and restore competency.
Nothing in the Attorney General’s and BOP’s policies
contravenes § 4241(d).

B. Due Process

Quintero argues that mandatory commitment under
18 U.S.C. § 4241(d) raises both substantive and procedural
due process concerns. The Due Process Clause of the Fifth
Amendment mandates that “[n]o person shall . . . be deprived
of life, liberty, or property, without due process of law.”
U.S. Const. amend. V. The Due Process Clause “protects
individuals against two types of government action”:
12 UNITED STATES V. QUINTERO

violations of substantive due process and procedural due
process. United States v. Salerno, 481 U.S. 739, 746 (1987).
“[S]ubstantive due process prevents the government from
engaging in conduct that shocks the conscience, or interferes
with rights implicit in the concept of ordered liberty.” Id.
(internal quotation marks and citations omitted). Procedural
due process requires that, even where a deprivation of liberty
survives substantive due process scrutiny, the action “be
implemented in a fair manner.” Id. (citing Mathews v.
Eldridge, 424 U.S. 319, 335 (1976)). Neither of Quintero’s
due process challenges has merit.

1. Substantive Due Process

Quintero first argues that mandatory commitment under
§ 4241(d) violates her substantive due process rights. She
claims freedom from confinement before trial is a
“fundamental right” and that we must apply heightened
scrutiny to the custodial provisions of § 4241(d). See Lopez-
Valenzuela v. Arpaio, 770 F.3d 772, 780–81 (9th Cir. 2014)
(en banc).

Pretrial commitment is “a significant deprivation of
liberty that requires due process protection.” Addington v.
Texas, 441 U.S. 418, 425 (1979). In Jackson v. Indiana, the
Supreme Court addressed the due process requirements for
pretrial commitment for competency restoration. 406 U.S.
at 738. Indiana—as did the United States and other states—
provided that mentally incompetent defendants could be
confined indefinitely. Id. at 731–36. The Supreme Court
held the Indiana statute was unconstitutional insofar as it
provided for indefinite commitment without “the customary
civil commitment proceeding that would be required to
commit indefinitely any other citizen.” Id. at 738. The Court
 UNITED STATES V. QUINTERO 13

held that a person hospitalized for competency restoration
“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” and that “continued commitment must be justified by
progress toward” the goal of competency restoration. Id.
at 738.

As we previously noted, 18 U.S.C. § 4241(d) was added
to conform to the Court’s holding in Jackson. Strong,
489 F.3d at 1061. In Strong, we held that § 4241(d) complies
with the requirements of due process under the framework set
out in Jackson. We began from the premise that “the right to
be free from Government confinement . . . is the very essence
of the liberty protected by the Due Process Clause” and that
“liberty is the norm, and detention prior to trial or without
trial is the carefully limited exception.” Id. at 1060 (quoting
Reno v. Flores, 507 U.S. 292, 346 (1993), and Salerno,
481 U.S. at 755). First, we found that “the duration of the
defendant’s commitment” under § 4241 is “inherently
limited” to “such a reasonable period of time, not to exceed
four months, as is necessary’” to determine the likelihood of
competency restoration. Id. at 1061–62 (quoting § 4241(d)).
Second, we held that in determining whether a “defendant is
susceptible to timely restoration,” there was a “close[] . . . fit
between the commitment and the purpose for which such
commitment is designed.” Id. at 1061. We noted that “[s]uch
a determination requires a more careful and accurate
diagnosis than the brief interviews and review of medical
records that tend to characterize the initial competency
proceeding.” Id. at 1062 (internal quotation marks and
14 UNITED STATES V. QUINTERO

citation omitted). We thus rejected Strong’s argument that
§ 4241(d) violated his substantive due process rights. 3

Quintero acknowledges our decision in Strong but argues
that, after our en banc decision in Lopez-Valenzuela, 770 F.3d
772, “automatic detention for competency restoration under
§ 4241(d) violates due process” because “the statute employs
an irrebuttable presumption that detention is necessary.”
According to Quintero, Strong is thus no longer binding
authority. We are not persuaded. In Lopez-Valenzuela we
addressed an Arizona statute that categorically denied bail for
aliens present in the United States illegally who were charged
with a felony offense. 770 F.3d at 775. Applying heightened
scrutiny, we held the statute unconstitutional. Id. at 780–81
& n.3. Lopez-Valenzuela concerned the liberty interests of a
class of defendants who were categorically denied bail that,
but for their alien status, would have been routinely afforded
to them. We fail to see how Lopez-Valenzuela has
undermined our decision in Strong. Section 4241(d) only
authorizes “hospitaliz[ation] . . . in a suitable facility” for a
limited purpose and for “a reasonable period of time.”
18 U.S.C. § 4241(d)(1). Unlike the statute at issue in Lopez-
Valenzuela, persons thought to be mentally incompetent are
entitled to a hearing and an individualized determination of
their competence. Their custody is only temporary and, if

3
We also noted that at least three circuits had rejected similar
challenges. Strong, 489 F.3d at 1063 (citing United States v. Filippi,
211 F.3d 649, 651–52 (1st Cir. 2000); United States v. Donofrio, 896 F.2d
1301,1303 (11th Cir. 1990); United States v. Shawar, 865 F.2d 856, 864
(7th Cir. 1989)). Since Strong, several other circuits have upheld § 4241
against various challenges. See United States v. McKown, 930 F.3d 721,
728–30 (5th Cir. 2019); United States v. Dalasta, 856 F.3d 549, 554–55
(8th Cir. 2017); United States v. Magassouba, 544 F.3d 387, 406–08 (2d
Cir. 2008); United States v. Ferro, 321 F.3d 756, 761–62 (8th Cir. 2003).
 UNITED STATES V. QUINTERO 15

treatment is not successful, may lead to their civil
commitment or even to their release. See Jackson, 406 U.S.
at 738.

Quintero also argues that Strong is inconsistent with the
Supreme Court’s decisions in Salerno, 481 U.S. 739, and Sell
v. United States, 539 U.S. 166 (2003).4 Both of those
decisions were issued well before our opinion in Strong, and
Strong quoted Salerno. See Strong, 489 F.3d at 1060.
Accordingly, they are not intervening Supreme Court
authority on which we may rely to overturn the judgment of
a prior panel of this court. See Miller v. Gammie, 335 F.3d
889, 893 (9th Cir. 2003) (en banc) (“[W]here the reasoning

4
Quintero appears to argue that these cases, together with Lopez-
Valenzuela, require “proof by clear and convincing evidence that no less
restrictive alternatives than confinement could reasonably address the
government’s interest.” The statement comes without citation, so we are
unsure of its origin. To be sure, the phrase “clear and convincing
evidence” appears in Salerno, but that is the level of proof required by the
Bail Reform Act, 18 U.S.C. § 3142(f), which was at issue in Salerno. See,
e.g., Salerno, 481 U.S. at 742, 750–52; see also Lopez-Valenzuela,
770 F.3d at 779–80, 782, 785 (referring, in each instance, to Salerno). We
cannot locate the phrase “no less restrictive alternative” (or some variant)
in any of these cases.

In any event, in Strong we did not set forth a formal standard of
scrutiny. We did use the phrase “reasonable relation” because that was the
standard the Court used in Jackson. See Strong, 489 F.3d at 1061 (quoting
Jackson, 406 U.S. at 738). Elsewhere we commented on the “the
closeness of the fit” in § 4241(d) “between the commitment and the
purpose for which such commitment is designed.” Id.

We take very seriously our obligation to examine our prior decisions
in light of subsequent developments; we do not lightly overturn one of our
prior decisions. Quintero falls well short of persuading us that there are
grounds to do so in this case.
16 UNITED STATES V. QUINTERO

or theory of our prior circuit authority is clearly irreconcilable
with the reasoning or theory of intervening higher authority,
a three-judge panel should consider itself bound by the later
and controlling authority . . . .”). Quintero’s argument is
simply an effort to re-argue Strong, but we are bound by it.
If Quintero believes Strong is wrongly decided, her remedy
lies in rehearing en banc or certiorari.

In any event, both of those cases dealt with very different
circumstances. Salerno rejected a substantive due process
challenge to a Bail Reform Act provision allowing for case-
by-case pretrial detention on the basis of future
dangerousness. 481 U.S. at 746–52. In the same vein, Sell
concerned forcible medication to restore competence for trial,
which the Supreme Court subjects to a higher standard of
review due to defendants’ distinct liberty interest in rejecting
invasive medical treatment. 539 U.S. at 177–78, 180–81; see
United States v. Loughner, 672 F.3d 731, 747–52, 765 (9th
Cir. 2012) (discussing Sell and distinguishing between
commitment for competency restoration under § 4241(d) and
involuntary medication orders).

Quintero also argues that we should overturn Strong
because it was based on the “faulty premise . . . that inpatient
confinement is always necessary to achieve the government’s
interests” and “[r]ecent empirical evidence refutes the
premise underlying Strong.” We see no such “premise” in
our decision. If there is a premise to be had here, it is
Congress’s. Nevertheless, we see no impediment in the
statute to the Attorney General—in his discretion, not ours—
choosing outpatient treatment as the “suitable facility.” 18
U.S.C. § 4241(d); see id. § 4247(a)(2) (defining “suitable
facility” as “a facility that is suitable to provide care or
treatment given the nature of the offense and the
 UNITED STATES V. QUINTERO 17

characteristics of the defendant”). Even if there is recent
empirical evidence confirming the effectiveness of outpatient
treatment, we cannot revisit Strong.

Finally, Quintero points us to a recent decision of the
Georgia Supreme Court. See Carr v. State, 815 S.E.2d 903,
914–16 (Ga. 2018). Even if we thought that decision
persuasive, we are not bound by state court decisions. We are
bound by our decision in Strong, and reaffirm that § 4241(d)
does not violate Quintero’s substantive due process rights.

2. Procedural Due Process

Quintero argues that mandatory commitment under
§ 4241(d) violates procedural due process because the statute
does not provide a sufficient adversarial hearing prior to
commitment. Relying on Vitek v. Jones, 445 U.S. 480
(1980), she asserts that a pre-deprivation adversarial hearing
specifically addressing the necessity of confinement is
warranted and that the court must make a finding that
outpatient programs are inadequate because § 4241(d) creates
an expectation that a defendant will not be committed to an
inpatient facility unless it is both “suitable and necessary.”
We hold that § 4241(d) provides sufficient procedural
safeguards prior to commitment, and thus her commitment
does not violate procedural due process.

A “civil commitment for any purpose constitutes a
significant deprivation of liberty that requires due process
protection.” Addington, 441 U.S. at 425. “When government
action depriving a person of life, liberty, or property survives
substantive due process scrutiny, it must still be implemented
in a fair manner.” Salerno, 481 U.S. at 746. The
constitutional process due depends upon “the extent to which
18 UNITED STATES V. QUINTERO

[the individual] may be condemned to suffer grievous loss,
and depends upon whether the [individual’s] interest in
avoiding that loss outweighs the governmental interest in
summary adjudication.” Goldberg v. Kelly, 397 U.S. 254,
262–63 (1970) (internal quotation marks and citation
omitted); see Mathews, 424 U.S. at 332.

To determine whether a pre-deprivation procedure
comports with due process, we consider: “(1) the private
interest affected; (2) the risk of an erroneous deprivation of
that interest and the probable value of additional procedural
safeguards; and (3) the government’s interest including the
function involved and the burdens that additional procedural
requirements would place on the state.” Hickey v. Morris,
722 F.2d 543, 548 (9th Cir. 1983) (citing Mathews, 424 U.S.
at 335).

We hold that § 4241(d) appropriately balances those
interests. First, we recognize that a pretrial defendant has a
significant liberty interest in avoiding pretrial confinement,
including civil commitment. See Addington, 441 U.S.
at 425–26; see also Humphrey v. Cady, 405 U.S. 504, 509
(1972). Even if not a punitive measure, commitment for
evaluation and treatment of mental conditions is a physical
restraint on liberty and may come with its own social stigma.
Indeed, the Court has held that even a convicted inmate is
entitled to some process before he may be transferred to a
mental facility, because such hospitalization is “qualitatively
different from the punishment characteristically suffered by
a person convicted of a crime.” Vitek , 445 U.S. at 493.

Second, the government has a strong interest in these
proceedings. It has charged a defendant such as Quintero
with violation of federal law. It has an obligation to try a
 UNITED STATES V. QUINTERO 19

defendant expeditiously, see U.S. Const. amend. VI;
18 U.S.C. §§ 3161–3174 (Speedy Trial Act), or release the
defendant. It may not try a defendant who cannot aid in his
own defense, see Pate v. Robinson, 383 U.S. 375, 378 (1966)
(citing Bishop v. United States, 350 U.S. 961 (1956)), and the
diagnosis may even have a bearing on any affirmative
defense of mental impairment at the time of the crime. If the
defendant cannot be tried because he is unable to aid counsel
in his defense and he cannot be restored to health, the
government may have to release the defendant. See Jackson,
406 U.S. at 738. But before the government so concludes, it
has an additional obligation to ensure that the defendant is not
a danger to himself or the public and may seek civil
commitment to protect the public. See id. at 733.

Given the strong interests of both the defendant and the
government, “[t]he final, and perhaps most important,
Mathews factor is the risk of erroneous deprivation and the
probable value of additional procedural safeguards.”
Humphries v. Cnty. of Los Angeles, 554 F.3d 1170, 1194 (9th
Cir. 2009), rev’d in part on other grounds, 562 U.S. 29
(2010). This prong requires that we examine the procedures
provided in the IDRA and “ask ‘considering the current
process, what is the chance the [government] will make a
mistake?’” Id. We think the risk of error is low. Section
4241 provides extensive safeguards to ensure that
commitment is justified. When questions first arise regarding
competency, the court must order a hearing “if there is
reasonable cause to believe that the defendant may presently
be” incompetent to stand trial. 18 U.S.C. § 4241(a). Prior to
the hearing, the court has discretion to order psychiatric or
psychological examinations of the defendant and that such
reports be filed with the court. Id. § 4241(b). These exams
must be conducted, and a report prepared, by a licensed or
20 UNITED STATES V. QUINTERO

certified psychiatrist or psychologist, and defendants may
request examiners in addition to those selected by the court.
Id. § 4247(b). The content of the report is specified by the
statute and must include a patient history and present
symptoms; a description of the tests that were employed; the
examining psychiatrist’s or psychologist’s diagnosis and
prognosis; and a conclusion as to whether the person is
suffering from mental impairment that renders him
incompetent to assist in his defense. Id. § 4247(c). The
report must be followed by a hearing at which the defendant
is required to be represented by counsel, and for which
counsel will be appointed for him “if he is financially unable
to obtain adequate representation.” Id. § 4247(d). At the
hearing, the defendant must be afforded the “opportunity to
testify, to present evidence, to subpoena witnesses on his
behalf, and to confront and cross-examine witnesses who
appear at the hearing.” Id. § 4241(c), 4727(d). After the
hearing, the court must find by a preponderance of the
evidence that the defendant is mentally incompetent to stand
trial before committing the defendant to the custody of the
Attorney General. Id. § 4241(d).

As we have previously stated, commitment to the
Attorney General for competency evaluation is durationally
limited to a “reasonable period of time, not to exceed four
months, as is necessary to determine whether there is a
substantial probability that in the foreseeable future [the
defendant] will attain the capacity to permit the proceedings
to go forward.” Id. § 4241(d)(1). Hospitalization may be
extended for competency restoration “for an additional
reasonable period of time” “if the court finds that there is a
substantial probability that within such additional period of
time he will attain the capacity to permit the proceedings to
go forward” or until the charges are dropped. Id.
 UNITED STATES V. QUINTERO 21

§ 4241(d)(2). The defendant may “at any time during [his]
commitment” request a further hearing to determine if he
should be discharged. Id. § 4247(h). Finally, 18 U.S.C.
§ 4241(e) provides additional safeguards for release upon a
restoration of competency.

As we consider these procedural safeguards Congress has
put in place, we are hard pressed to understand what further
procedures are required to reduce the risk of error. A hearing,
attended by counsel, with an opportunity to testify, to present
evidence, to subpoena witnesses, to confront and cross-
examine witnesses, and to seek reconsideration of an adverse
decision is the core of American due process. See Vitek,
445 U.S. at 494–95. Nevertheless, Quintero argues that she
is entitled to a “predeprivation process” to decide if outpatient
treatment is suitable. This is not properly a procedural due
process argument, but a variation on her substantive due
process argument, which we have rejected. Congress has
provided ample process for determining whether a defendant
is mentally incompetent and likely to respond to treatment.
The choice of a facility is within Congress’s prerogative.

We have little difficulty holding that mandatory
commitment under § 4241(d) comports with the requirements
of procedural due process.

C. Equal Protection

Quintero raises three arguments under the equal
protection component of the Due Process Clause of the Fifth
Amendment. We examine equal protection claims under a
two-step inquiry, first inquiring whether the petitioner’s class
is similarly situated to the claimed disparate group and, if so,
whether the classification is justified. Pimentel v. Dreyfus,
22 UNITED STATES V. QUINTERO

670 F.3d 1096, 1106 (9th Cir. 2012) (per curiam). We will
consider each argument in turn.

Quintero first argues that § 4241(d) denies her equal
protection of the laws because it imposes a less stringent
standard for confinement than the Bail Reform Act, 18 U.S.C.
§ 3142(e), which governs release or detention of pretrial
defendants. The Bail Reform Act provides in relevant part:

If, after a hearing . . . , the judicial officer
finds that no condition or combination of
conditions will reasonably assure the
appearance of the person as required and the
safety of any other person and the community,
such judicial officer shall order the detention
of the person before trial.

18 U.S.C. § 3142(e)(1). Quintero argues that, like defendants
denied bail, she has been confined but, unlike defendants
denied bail, she has not been found to be dangerous. We
think it obvious that the two situations are not comparable for
equal protection purposes. The purposes of confinement
under each statute are not the same: Section 3142(e) ensures
that the defendant appears at trial and does not endanger the
community, while § 4241(d) aims to assess the potential to
restore a defendant to competency to stand trial. The
government has different interests for confinement of each
group, and thus these two classes of defendants may be
subject to different standards related to those interests.

Quintero also argues that mentally incompetent pretrial
defendants are subject to less stringent standards for
commitment than convicted persons who, having served their
sentence, are going to be committed civilly. See 18 U.S.C.
 UNITED STATES V. QUINTERO 23

§ 4246. Section 4246 governs hospitalization of three classes
of mentally impaired persons: (1) convicted persons whose
sentence is about to expire, (2) pretrial defendants committed
to the custody of the Attorney General under § 4241(d), and
(3) pretrial defendants committed under § 4241(d) whose
charges have been dismissed because of their mental
condition. Id. § 4246(a). Section 4246(d) provides:

If, after the hearing, the court finds by clear
and convincing evidence that the person is
presently suffering from a mental disease or
defect as a result of which his release would
create a substantial risk of bodily injury to
another person or serious damage to property
of another, the court shall commit the person
to the custody of the Attorney General.

Again here, the purposes of commitment for persons subject
to each statute differ: Section 4246 is about protecting the
community from a dangerous and mentally ill defendant who
is about to be released, while § 4241(d) aims to ensure an
accurate assessment of competency before trial. Including an
assessment of danger in § 4246 directly addresses the
statute’s purpose of protecting the community, but it serves
no purpose in the context of a competency assessment.
Section 4246 itself recognizes that persons subject to these
statutes are not similarly situated. Defendants committed
pursuant to § 4241(d) may be subject to § 4246 in some
instances because, although not all defendants committed
pursuant to § 4241(d) are dangerous, those found
dangerous—and who could be released after the durational
limit or through the other safety valves—are subject to further
hospitalization under § 4246. The consequences also differ:
Section 4246 allows for potentially indefinite confinement of
24 UNITED STATES V. QUINTERO

a defendant who has already served her sentence, while
§ 4241(d) allows for confinement before trial for only a
“reasonable period of time.” The stricter standard in § 4246
makes sense where the period of confinement is not so
limited and discharge is conditioned on a finding that the
person is no longer a danger. Id. § 4246(e).

The Supreme Court’s decision in Jackson v. Indiana,
406 U.S. 715, reinforces our conclusion. In that case
Jackson, who was deaf, mute, and mentally handicapped, was
accused of robbery. Before he could be tried, the court found
him mentally incompetent to aid in his defense and
committed him to the custody of the Indiana Department of
Mental Health until he could be certified as sane. 406 U.S. at
717–18. Because Jackson likely could not be rehabilitated,
it was effectively a life sentence. See id. at 716. Although
Jackson had not been convicted of any crime, the standards
for his commitment and the conditions for his release were
stricter than for similarly situated persons in the general
population. The Court concluded that Indiana’s scheme
violated the Equal Protection Clause of the Fourteenth
Amendment. Id. at 729–30.

Section 4241(d) does not present the same concerns as the
Indiana statute at issue in Jackson. Section 4241(d) does not
automatically condemn a mentally incompetent defendant to
potentially permanent commitment. Instead, the period of
hospitalization under § 4241(d) is statutorily limited to four
months for assessment and an additional reasonable period of
time if there is a substantial probability that the defendant can
be restored to competence. Release is also mandated where,
at the end of the time period, a “defendant’s mental condition
has not so improved as to permit the proceedings to go
forward.” 18 U.S.C. § 4241(d). Any further restraint on
 UNITED STATES V. QUINTERO 25

Quintero’s liberty, such as civil commitment, would be
subject to other statutory and constitutional constraints.
Section 4241(d) thus avoids Jackson’s concerns with time
limits and release mechanisms.

Finally, Quintero argues that mandatory confinement
under § 4241(d) violates her right to equal protection because
federal pretrial defendants are subject to a less stringent
commitment standard than Arizona state defendants. See
Ariz. Rev. Stat. § 13-4512(D) (requiring courts to consider a
variety of factors and select the “least restrictive treatment
alternative” for competency restoration). Quintero
acknowledges that there is no equal protection violation
where the federal government treats defendants charged with
federal crimes differently than a state treats defendants
charged with state crimes. United States v. Antelope,
430 U.S. 641, 649 (1977) (“Under our federal system, the
National Government does not violate equal protection when
its own body of law is evenhanded, regardless of the laws of
States with respect to the same subject matter.” (footnotes
omitted)). Nothing else needs be said regarding our dual
sovereignty. Antelope supplies a complete answer to
Quintero’s argument.

D. Fundamental Fairness

Quintero next raises a novel claim that mandatory
commitment violates fundamental fairness and a hybrid due
process/equal protection right recognized by the Supreme
Court in Obergefell v. Hodges, 576 U.S. 644 (2015), and
Bearden v. Georgia, 461 U.S. 660 (1983). In Obergefell the
Court observed that “[t]he Due Process Clause and the Equal
Protection Clause” “set forth independent principles,”
although they “are connected in a profound way.” 576 U.S.
26 UNITED STATES V. QUINTERO

at 672. The Court in Bearden noted that in cases concerning
indigent defendants, “[d]ue process and equal protection
principles converge,” but that most decisions “have rested on
an equal protection framework.” 461 U.S. at 665.

We need not parse these cases further. In both Obergefell
and Bearden, the Court considered the convergence of due
process and equal protection rights the Court had previously
recognized. Here, Quintero argues that we should find a
synergy in these clauses that is greater than either of the
clauses individually. But in this case, we have rejected
Quintero’s due process and equal protection clause
arguments. We decline to create a new right here that is
unsupported by either the Due Process Clause or the equal
protection component of the Due Process Clause.

E. The Sixth Amendment

Quintero raises a Sixth Amendment challenge to
§ 4241(d) for the first time on appeal. She argues only that
§ 4241(d) could create a conflict of interest for counsel in
some cases, which would be inconsistent with the Sixth
Amendment. She does not argue that her own counsel was
faced with any conflict here. At base, her argument is that
mandatory commitment under § 4241(d) “makes effective,
conflict-free representation impossible in some
circumstances” because defense counsel will face the tension
between “[d]ooming” a client to lengthy hospitalization and
allowing an incompetent client to stand trial. Because
Quintero did not raise a Sixth Amendment claim before the
district court, we review her claim for plain error. United
States v. Olano, 507 U.S. 725, 730–36 (1993); see Fed. R.
Crim. P. 52(b). To succeed, she must demonstrate that
 UNITED STATES V. QUINTERO 27

(1) there is an error; (2) the error is clear or
obvious, rather than subject to reasonable
dispute; (3) the error affected [her] substantial
rights, which in the ordinary case means it
affected the outcome of the district-court
proceedings; and (4) the error seriously
affected the fairness, integrity, or public
reputation of judicial proceedings.

United States v. Walter-Eze, 869 F.3d 891, 911 (9th Cir.
2017) (citation omitted).

The Sixth Amendment guarantees defendants the right to
“effective assistance of counsel,” which includes “a duty of
loyalty” and “a duty to avoid conflicts of interest.” Strickland
v. Washington, 466 U.S. 668, 686, 688 (1984). However, “a
reviewing court cannot presume that the possibility for
conflict has resulted in ineffective assistance of counsel.”
Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). The Sixth
Amendment protects defendants only from actual conflicts of
interest—not every potential conflict that could arise. Wheat
v. United States, 486 U.S. 153, 159–60 (1988). Thus, mere
allegations of a potential conflict of interest are insufficient
to demonstrate a violation of the Sixth Amendment. United
States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).

At the outset, Quintero’s failure to allege or demonstrate
any actual conflict of interest for her counsel dooms her
argument. Quintero has not shown—or even alleged—an
actual conflict of interest in her counsel’s representation.
Quintero initiated the competency proceedings here, and she
does not argue that her counsel filed the motion for
competency determination against her wishes. Mandatory
28 UNITED STATES V. QUINTERO

commitment does not violate her Sixth Amendment right to
conflict-free representation.

In any event, § 4241(d) does not violate the Sixth
Amendment. Defense counsel has “a duty to investigate a
defendant’s mental state if there is evidence to suggest that
the defendant is impaired.” Douglas v. Woodford, 316 F.3d
1079, 1085 (9th Cir. 2003). A failure to raise competency
with the court may deprive a defendant of effective assistance
of counsel. Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir.
2011). But the possibility that counsel’s client may have to
be hospitalized to verify her mental competence does not
present a real conflict of duties: temporary confinement is a
consequence of counsel’s duty to raise the mental stability of
his client. Moreover, not every dilemma presents a conflict
of constitutional dimensions. Counsel often faces difficult
and consequential choices in determining trial strategy:
whether to cross-examine certain witnesses; whether to raise
objections in front of the jury; whether to raise certain
affirmative defenses, including an insanity defense; and
whether to mount a defense at all, or rest on the government’s
burden of proof. The fact that counsel has to make hard
choices, and may be subject to second-guessing by post-
conviction counsel, is not evidence of a conflict created by
the law. Although an increased sentence resulting from
deficient performance by counsel prejudices a defendant and
violates the Sixth Amendment, Glover v. United States,
531 U.S. 198, 200 (2001), temporary pretrial hospitalization
to assess competency is not a sentence. Pretrial detention
provisions are regulatory, not punitive. Salerno, 481 U.S. at
747 (finding that pretrial detention under the Bail Reform Act
was regulatory, not punitive).
 UNITED STATES V. QUINTERO 29

We hold that mandatory commitment under § 4241(d)
does not violate the Sixth Amendment.

F. The Eighth Amendment

Quintero next argues that mandatory confinement of
incompetent defendants pursuant to § 4241(d) violates the
Eighth Amendment’s prohibition of “[e]xcessive bail.” U.S.
Const. amend. VIII. We are unsure why the Excessive Bail
Clause is even relevant here. Quintero does not seek bail in
this proceeding. We think that Quintero has attempted to
draw a principle from that Clause that there must be a
“weighing of individual factors” and a “constitutional
presumption in favor of release.” Like her other
constitutional claims, Quintero’s excessive bail argument
falls short.

The Bail Reform Act “requires the release of a person
facing trial under the least restrictive condition or
combination of conditions that will reasonably assure the
appearance of the person as required and the safety of the
community.” United States v. Gebro, 948 F.2d 1118, 1121
(9th Cir. 1991). So “when Congress has mandated detention
on the basis of a compelling interest other than prevention of
flight, . . . the Eighth Amendment does not require release on
bail.” Salerno, 481 U.S. at 754–55.

The government has a compelling interest in ensuring
competence for trial. It has both a “substantial interest in
timely prosecution” and a “concomitant, constitutionally
essential interest in assuring that the defendant’s trial is a fair
one.” Sell, 539 U.S. at 180. The government may not
convict a mentally incompetent defendant, Robinson,
383 U.S. at 378, and it bears the burden of demonstrating the
30 UNITED STATES V. QUINTERO

defendant’s competency, United States v. Frank, 956 F.2d
872, 875 (9th Cir. 1991). Even if we thought the Excessive
Bail Clause had some bearing on our decision, these are not
sufficient reasons for disapproving the scheme laid out in the
IDRA.

G. Disability Law

In her final challenge, Quintero argues that mandatory
commitment pursuant to § 4241(d) violates the Rehabilitation
Act, 29 U.S.C. § 794(a), and the Americans with Disabilities
Act, 42 U.S.C. § 12132, both of which prohibit discrimination
on the basis of disability.5 She further claims that mandatory
commitment violates the proscription against unjustified

5
The Rehabilitation Act provides in relevant part:

No otherwise qualified individual with a disability in
the United States . . . shall, solely by reason of her or
his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal
financial assistance or under any program or activity
conducted by any Executive agency . . . .

29 U.S.C. § 794(a). The Department of Justice’s (DOJ) Rehabilitation Act
implementing regulations provide that DOJ “shall administer programs
and activities in the most integrated setting appropriate to the needs of
qualified handicapped persons.” 28 C.F.R. § 39.130(d). These
implementing regulations apply “to all programs or activities conducted
by” DOJ. 28 C.F.R. § 39.102.

Title II of the ADA provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132.
 UNITED STATES V. QUINTERO 31

isolation of the disabled set out by the Supreme Court in
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597 (1999).
Quintero cites no authority which permits her to assert these
civil claims within the context of her interlocutory criminal
appeal. If Quintero wishes to assert and develop these legal
theories, she must do so in the context of a civil cause of
action. We therefore decline to reach the merits of these
arguments here.

IV. CONCLUSION

The district court here properly found Quintero
incompetent to stand trial and ordered her committed to the
custody of the Attorney General for inpatient assessment and
treatment. The district court did not have discretion to order
alternative outpatient evaluation. We affirm the district
court’s commitment order.

ORDER AFFIRMED.