UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Petitioner-Appellee,
v. No. 97-6505
GLEN SHARKANY,
Respondent-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CR-97-51-5-BR)
Argued: December 4, 1997
Decided: January 20, 1998
Before WILKINSON, Chief Judge, and ERVIN and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: George Alan DuBois, Assistant Federal Public Defender,
Raleigh, North Carolina, for Appellant. Michael David Bredenberg,
Special Assistant United States Attorney, Raleigh, North Carolina, for
Appellee. ON BRIEF: William Arthur Webb, Federal Public
Defender, Raleigh, North Carolina, for Appellant. Janice McKenzie
Cole, United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Glen Sharkany appeals a district court order committing him to the
custody of the Attorney General pursuant to 18 U.S.C. § 4246. Sec-
tion 4246 authorizes the civil commitment of an individual whose
prison sentence is due to expire if a "court finds by clear and convinc-
ing evidence that the person is presently suffering from a mental dis-
ease 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." 18 U.S.C. § 4246(d). Finding no clear error
in the district court's conclusion, we affirm.
I.
In January 1993, Sharkany threatened the President-Elect of the
United States. In September 1995, Sharkany, at that time serving a
state sentence in Connecticut on other charges, pled guilty to this
offense. Sharkany received a sentence of thirty-seven months impris-
onment, to run concurrent with his state sentence, followed by thirty-
six months of supervised release. On January 31, 1997, the United
States, pursuant to 18 U.S.C. § 4245, petitioned for a hearing to deter-
mine Sharkany's present mental condition and whether he should be
committed for treatment for the remainder of his prison sentence.
Officials at the Federal Correctional Institute in Butner, North Caro-
lina ("FCI-Butner"), where Sharkany then was serving his sentence,
realized that he was due to be released from prison at the end of Feb-
ruary 1997. The government therefore submitted a"certificate of
mental disease or defect and dangerousness" from the warden at FCI-
Butner, pursuant to 18 U.S.C. § 4246, to consider whether Sharkany
should be committed to the custody of the Attorney General upon
expiration of his prison term.
On February 10, 1997, the district court held a hearing on both the
section 4245 and the section 4246 motions. The court heard testimony
2
from Dr. Bryon Herbal, a staff psychiatrist at FCI-Butner. Based on
his review of Sharkany's mental health records, interviews with Shar-
kany and his family, and psychological tests of Sharkany, Herbal con-
cluded that Sharkany presently suffered from several mental disorders
and should not be released. Dr. Billy Royal submitted a psychological
evaluation of Sharkany, previously ordered by the court pursuant to
18 U.S.C. § 4247. In his report, Dr. Royal diagnosed Sharkany with
several mental disorders and expressed concern about Sharkany's
present ability to function in society. Sharkany also testified on his
own behalf.
At the close of the hearing, the court committed Sharkany to the
custody of the Attorney General pursuant to both section 4245 and
section 4246. Since the district court entered this order, Sharkany's
prison sentence has expired, rendering moot any challenge to his sec-
tion 4245 commitment. On appeal, Sharkany challenges only his sec-
tion 4246 commitment.
II.
Sharkany does not contest the district court's conclusion that he
presently suffers from a mental disease or defect. Instead, he main-
tains that he does not, as a result of his illness, pose a substantial risk
of danger to others or their property. We reject Sharkany's conten-
tions and find no error in the district court's decision.
In order to commit an individual pursuant to section 4246, a court
must find by clear and convincing evidence that the individual is (1)
presently suffering from a mental disease or defect and (2) as a result
of such disease or defect his release would pose a substantial risk of
bodily injury to another or serious damage to another's property. 18
U.S.C. § 4246(d).* We review a district court's order under this pro-
_________________________________________________________________
*The director of the federal facility in which a mentally ill defendant
is hospitalized must certify, among other things, that "suitable arrange-
ments for State custody and care of the person are not available." 18
U.S.C. § 4246(a). Sharkany does not challenge the sufficiency of the cer-
tification in this case, and we have no reason to address that subject. Cf.
United States v. Copley, 935 F.2d 669, 672 (4th Cir. 1991) (noting that
3
vision for clear error. United States v. Cox, 964 F.2d 1431, 1433 (4th
Cir. 1992).
Sharkany challenges the district court's finding that he posed a
danger to others or their property. Ample evidence, however, sup-
ported the district court's conclusion that Sharkany was dangerous. At
Sharkany's hearing, Dr. Herbal testified about Sharkany's extensive
history of violent behavior. For example, Sharkany had assaulted
police officers on several occasions and threatened to kill a judge and
other law enforcement officials. Dr. Herbal also related accounts of
incidents since Sharkany has been at FCI-Butner. For example, Shar-
kany has ripped metal desks from their wall mounts, torn up sheets
and mattresses in an attempt to hang himself, and broken various
restraints including handcuffs and leg irons. These incidents provided
the district court with sufficient evidence of Sharkany's dangerous-
ness. Id. at 1433.
Sharkany urges that any risk of dangerousness is slight because the
conditions of his supervised release require him to undergo a mental
health counseling program. The district court was aware of the condi-
tions of Sharkany's supervised release and was entitled to weigh that
evidence along with the expert medical testimony about Sharkany's
potential dangerousness and his history of failing to take his medica-
tion.
Finally, Sharkany alleges that, even if his past behavior demon-
strates a risk of dangerousness, the government failed to show a nexus
between that behavior and Sharkany's mental illness. Section 4246,
however, does not require proof of a connection between these prior
incidents and mental illness but only proof of present dangerousness
as a result of a mental disease or defect. The district court properly
considered both expert medical opinions and Sharkany's history of
violence to conclude that Sharkany presently posed a danger because
_________________________________________________________________
there must be "no available state facility to house the defendant"); S.
Rep. No. 225, 98th Cong., 1st Sess. 250-54 (1983), reprinted in 1984
U.S.C.C.A.N. 3182, 3432-36 (section 4246 is to "be used only in those
rare circumstances where . . . there are no State authorities willing to
accept [the defendant] for commitment").
4
of his mental illness. Its conclusion was not clear error. United States
v. Ecker, 30 F.3d 966, 970-71 (8th Cir. 1994); Cox, 964 F.2d at 1433.
III.
For the foregoing reasons, we affirm the order of the district court.
AFFIRMED
5