## United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 22

- 2095

___________________________ United States of America Plaintiff - Appellee

v. Loanis Gregos

- Gutierrez Defendant - Appellant

____________ Appeal from United States District Court for the Western District of Missouri - Springfield

____________ Submitted: September 19 , 2023 Filed: November 6, 2023 [Unpublished]

____________ Before SHEPHERD, KELLY, and STRAS, Circuit Judges.

____________
PER CURIAM.

Loanis Gregos

- Gutierrez appeals the district court ’s 1 deni al of his motion to dismiss the Government’s petition for civil commitment pursuant to 18 U.S.C. § 4246. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

1 The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri.-2- In July 2018, Gregos

- Gutierrez was charged in the United States District Court for the Western District of Texas with unlawful reentry to the United States after a prior removal, in violation of 8 U.S.C. § 1326. A fter he moved for and received a mental

- competency evaluation pursuant to 18 U.S.C. § 4241, the district court held a hearing and found him presently incompetent to stand trial

. It ordered him committed to the custody of the Attorney General , under § 4241(d), for a reasonable period of time, not to exceed four months, for treatment to determine if his mental condition could improve to stand trial

. In that same order, the district court directed that , if after the § 4241(d) evaluation his condition did not improve enough , G regos

- Gutierrez should be examined, pursuant to 18 U.S.C. § 4246 (a), to determine whether he was “ 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. ” 18 U.S.C. § 4246(a).

After a four

- month evaluation at the United States Medical Center for Federal Prisoners in Springfield, Missouri , a report explained that while Gregos

- Gutierrez ’s condition had improved , an additional four months were needed to further evaluate his competency to stand trial. T he district court ordered an additional four

- month evaluation. After the second evaluation period , a report explain ed that Gregos

Gutierrez would likely not be restored to competency in the future and a risk assessment conclud ed that he would pose a danger if released

. Aft er a competency hearing, the district court ordered civil commitment proceedings under § 4246 (a).

On February 27, 2020, the Government filed a § 4246 civil commitment petition in the United States District Court for the Western District of Missouri , the district in which Gregos

- Gutierrez was confined under § 4241(d)

. He moved to dismiss that petition for lack of subject matter jurisdiction and failure to state a claim

. He a lleged that the delays in his § 4241 commitment violated the statute’s timing provisions and his due process rights. Because his § 4241 commitment lasted longer than allowed by statute, he explain ed , he was not lawfully in the custody of the Attorney General when the Government filed its § 4246 petition. Therefore, the United States District Court for the Western District of Missouri lacked subject

--3- matter jurisdiction to civilly commit him under § 4246, and the Government ’s petition failed to state a claim for which relief could be granted

. After hearings on the matter, t he district court denied his motion and committed him to the custody of the Attorney General pursuant to § 4246. He appeals.

We review the denial of Gregos

- Gutierrez’s motion to dismiss the Government’s § 4246 petition de novo

. United States v. Ryan , 52 F.4th 719, 721 (8th Cir. 2022) , cert. denied, 143 S. Ct. 1791 (2023)

. Gregos

- Gutierrez argues that the district court erred in denying his motion to dismiss the § 4246 petition for the same reasons he argued below. During the pendency of this appeal, we resolved in Ryan the jurisdictional issues raised by Gregos

- Gutierrez.

“[T]he requirement in § 4246(a) that a defendant be committed to the custody of the Attorney General under § 4241(d) is not jurisdictional [and therefore] can be waived.” Id. at 722. “ A defendant waives the right in his § 4246 proceeding to challenge the lawfulness of his § 4241(d) custody by not raising it at the proper time and place ,” which “ [i]s during the [proceedings in the court that ordered the § 4241(d) custody].” Id. ( alterations in original ). A due process challenge to a § 4241(d) commitment may also be similarly waived

. See i d. at 723 n.3.

Gregos

- G utierrez urges us to overrule Ryan . However, “ [i] t is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel.” Owsley v. Luebbers , 281 F.3d 687, 690 (8th Cir. 2002) (per curiam) . We are therefore bound to follow the clear holdings of Ryan

. Gregos

- Gutierrez challenged his § 4241 commitment in the Western District of Missouri, the court overseeing his civil commitment under § 4246

. Because he did not assert § 4241 timing and due process violations during the proceedings in the United States District Court for the Western District of Texas, the court that ordered the § 4241 custody, he has waived his right to assert those claims in the § 4246 proceeding in the Western District of Missouri. Therefore, the district court did not err in denying his motion to dismiss

.-4- Accordingly, we affirm.

______________________________