FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

U N I T E D S TA T E S O F A ME R I C A , Plaintiff-Appellee
,

v

.

S ON IA Q UI

N T E RO , Defendant-Appellant. No. 19-10300

D.C. No. 4:17-cr-01895- JAS-LAB-1

OPINION

Appeal from

the United States District Court f or the District of Arizona Jam es Alan Soto, District Judge, Presiding

Argued and Subm itted November 17, 2020

Phoenix, Arizona

Filed April 29, 2021

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

Opinion by Judge BybeeU N I T E D S TA T E S V

. Q UI N T E RO 2

SUMMARY *

Criminal Law

The panel affirm ed the district court’s order comm itting Sonia Quintero, who was found incom p etent to stand trial on federal drug charges, to the custody of the Attorney General pursuant to 18 U.S.C. § 4241(d) for inpa t i e n t assessm ent o f her potential for restoration to com petency.

Quintero argued that the distri c t court should have ordered evaluation and treatm ent in an outpatient facility and that h er comm itm ent violates her statutory and constitutional rights.

The panel held that § 4241(d) m andates that district courts

comm it m entally incom

petent de fe n dants to the custody o f the Attorney General for treatm ent, without discretion f or the court to order a particular treatm ent. The panel rejected Quintero’s contention that the Attorn ey General’s and the Bureau o f Prisons’ policies contravene § 4241(d) in violation of the Take C are Clause of Article II o f the Constitution and general separation of powers principles.

The panel reaffirm ed that § 4 241(d ) d oes n ot violate Quintero’s substantive due p r ocess rights, and h eld that

m andatory comm itm e n t under § 4241(d) com ports with the requirem ents of procedural due process.

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.U N I T E D S TA T E S V

. Q UI N T E RO 3

The panel rejected Quintero’s three argum ents under the equal protection com

ponent o f the Due P rocess Clause of the Fifth Am endm ent: (1) that § 42 4 1 (d ) denies her equal p rotection because it im

poses a less stringent standard fo r confinem ent than the Bail Reform Act; (2) that m entally incom petent pretrial defendants are subject to less stringent standards for comm itm ent than convicted persons who, having served their sentence , a re going to be comm itted civilly; and (3) that § 4 2 41 (d) violates her right to equal protection because federal pretrial defendants are s ubject to

a l e s s stringent comm itm ent standard than Arizona state defendants.

The p anel reviewed for p lain error Quintero’s argum ent, raised for the first tim e o n appeal, that § 4241(d) could create

a conflict of interest fo r c o unsel, inconsistent with the Sixth Am endm ent, because o f th e ten sio n b etween doom ing a client to lengthy hospitalization and allowing an incom petent client to stand trial. The pan e l observed that Quintero failed to allege o r dem onstrate any actual conflict of interest for her

own counsel, and held that m andatory comm itm ent under § 4241(d) does not violate the Sixth Am endm ent.

The p anel rejected Quintero’s argum ent th at m andatory

co nfinem ent o f incom

petent d efendants pursuant t o § 4 2 4 1 (d) violate s the Eighth Am endm ent’s prohibition of excessive bail.

The panel declined to r e a c h
, in this crim inal appeal, Quintero’s argum ents that m a n datory comm itm ent p ursuant to § 4 241(d) violates the Rehabilitation Act and the Am ericans with Disabilities Act.U N I T E D S TA T E S V

. Q UI N T E RO 4

C OUNSEL

M. Edith Cunn i n g h am (argued) and Jam es D. Sm ith, Assistant Federal Public Defenders; Jon M. Sa n d s, Federal Public Defender; Office of the Federal Public Defende r, Tucson, Arizona; for Defendant-Appellant.

Shelly K.G. Cle me n s (argued), A ssistant United States Attorney; C hristina M. Cabanillas, Deputy Appellate Chief; M i chael Bailey, United States Attorney; United Stat e s Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.

OPINION

BYBEE, Circuit Judge:

Sonia Quintero was found incom petent to stand trial and

was comm itted to the custody of the At t o rney General pursuant to 18 U.S.C. § 4 241(d) fo r assessm ent of her potential for restoration to c o mp e tency. Under Departm ent of Justice policy, Quintero w as to be hospitalized in an inpatient facility f

or eva l u a tion and treatm ent. Quintero argues that the district court should have ordered evaluation and treatm en t in an outpatient facility and that her

comm itm ent violates her statutory and constitutional rights.

W e affirm

the district court’s com m itm ent order.

I. PROCEDURAL HISTORY

In Decem ber 2017, Quintero was charged in the District of Arizona with conspiracy to possess with intent to distribute and possession with intent to distribute m arijua n a , inU N I T E D S TA T E S V

. Q UI N T E RO 5

violation of 2 1 U.S.C. § 841(a)(1) and 8 4 1 (b)(1)(B)(vii). During pretrial proceed i n gs, Quintero filed a m otion to determ ine com

petency, along with a neuropsychological evalu atio n co n clu d in g th at Q u intero was incom petent to stand trial due to cognitive im pairm ent resulting from severe traum atic brain injury and that she was not resto r ab le t o
com petency. Th e m agistrate judge ordered a second psychiatric evaluation, which concluded that Quintero was incom petent to stand trial but was restorable to com petence.

After an evident iary h earing with testim ony f rom both evaluators, the m agistrate judge agreed that Quintero was not

com petent to stand trial, but determ ined that she was likely restorable to com

petenc e. 1 Quintero objected to m andatory

comm itm ent for comp e tency restoration and instead requ e s ted o utpatient treatm ent. However, the m agistrate judge f ound that c o mm itm ent was m andated by 18 U.S.C. § 4241(d) and ordered her comm itted to the custody of the Attorney General.

Quintero objected to the m agistrate judge’s order, b ut the district court overruled the o bjection. Quintero tim ely appealed.

1 W e note that t

he second half of the m agistrate judge’s finding exceeded the scope of § 4 2 41(d), which only authorizes the court to d e term ine whether the defendant is suffering from a m ental disease o r d e fect that renders him incom petent t o stand trial, not whether the defendant is restorable to com pete n cy at that p oint i n the proceedings. This extraneous finding does not affect our analysis here.U N I T E D S TA T E S V

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II. JURISDICTION AND STANDARD OF REVIEW

W e have jurisdiction under 2 8 U.S.C. § 1291 and pur s u ant to the collateral order doctrine. United S tates v. Friedman
, 3 66 F.3d 975, 980 (9th Cir. 2004). W e revi e w challenges to the constitutionality o f a statute and questions of statutory construction de novo

. Un ited States v. Strong
, 489 F.3d 1 055, 1 060 (9th Cir. 2007); United States v. Kowalczyk, 805 F.3d 847, 856 (9th Cir. 2015).

III. DISCUSSION

Th e I n sanity Defense R eform Act (IDRA), 1 8 U.S.C. §§ 17, 4241–47, governs pretrial com petency evaluation and restoration. Section 4241 provides in relevant part:

If, after the hearing, the court finds by a preponderance of the eviden c e that the defendant is p resently suffering f rom a m ental dis e ase or defect rendering him m entally incom petent to the extent that he is unable to understand the nature and consequ en ces of the proceedings against him or to assist p r op erly in his defense, the court shall comm it the defendant to the custody of the At to rney G e n e r a l

. T h e At t o rn e y G e n e r a l s h a l l hospitalize the defendant for treatm e nt in a suitable facility–

( 1 ) for such a reasonable period of tim e, not to exceed four m onths, as is necessary to determ ine whether there is a substantial probability that in the fo r eseeable futureU N I T E D S TA T E S V

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he will atta i n th e capacity to perm it the proceedings to go forward; and

(2) for an addi tional reasonable period o f tim e until–

(A) his m ental condition is so im proved that trial m ay proceed, if the court f inds th a t there is a substantial probability that within such additional period of tim e he will att ain the capacity to perm it the proceedings to go forward; or

(B) the pending ch a r ges against him are disposed of according to law;

whichever is earlier.

18 U.S.C. § 4241(d).

Quintero raises sev en d i stin ct ch allen g es to h er m an d ato r y inpatient com

m itm ent under § 4 241(d). She a rg ues: (1) § 4241(d) grants the district cou rt d i s c retion to order a specific form o f treatm ent, and th e p o licies o f the Attorney Gener al a n d Bureau o f Prisons (BOP) violate the Constitution; m andatory comm itm ent violates (2) du e pro cess, (3) equal protection, (4) fundam ental fairness, (5) the Sixth Am endm ent, and (6 ) the Eighth Am endm ent; and (7) m andatory comm itm ent d iscrim inates on the basis o f disability in violation of the Rehabilitat i o n Act and the Am ericans with Disabilities Act. None of these argum ents is persuasive.U N I T E D S TA T E S V

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A. Statutory Construction

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

Quintero argues that § 4241(d) grants the d istric t c ourt discretion to order outpatient c o mp etency restoration

assessm ent and treatm ent. This contention is m eritless. The statute is clear that upon fi n d in g a defendant m entally incom petent to stand trial, “the court s h a l l comm it the defendant to the custody of the Attorn ey General” and that “[t]he A ttorn e y General shall h ospitalize the defendant for treatm ent in a suitable facility.” 18 U.S. C. § 4241(d); see Strong
, 48 9 F. 3d at 1 057 (holding that m andatory

comm itm e n t under § 4241(d) does not violate due p rocess). The district court’s responsibility is to m ake the appropriate determ ination that the defendant is m entally incom p etent. The court has no role in determ ining the “suitable facility.”

Other provisions of the IDRA support this construction o f § 4241(d). For an initial ps y chological evaluation of a pretrial defendant—the ste p before comm itm ent for

com petency restoration evaluation—Congress em ployed alm ost identical language to § 4241(d), except that it used the perm issive verb “m ay” i n § 4247(b). See 18 U.S.C. § 4 2 4 7 (b) (“[T]he court may comm it the person to b e
exam ined for a reasonab l e period

. . . to the custody of the Attorney General for placem ent in a suitable f acility.”) (em phasis added)). And the IDRA provides that upon restoration of com

pete ncy, “the court shall order his imme d i a te discharge from the facility in which he is h ospitalized.” Id. § 4241(e) (em phasis added). In order for Quintero’s proposed rea d ing o f § 4241(d)—that “shall”

m eans “m ay”—to b e consistent, we would have to read § 4241(e) to be perm issive as well, a reading we are confidentU N I T E D S TA T E S V

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Quintero would not support. If th e r e is discretion here, it rests with the At t o rn e y General, as elsewhere the IDRA provides that th e Attorney General “shall

. . . consider the suitability of the facility’s rehabilitation program s in m eeting the needs of the person” and “m ay contract with a St at e , a political subdivision, a locality, or a private a g ency f or the confinem ent, hospitalization, care, or treatm ent o f, or the provision of services to, a person comm itted to h is custody.” Id. § 4247(i)(A), (C).

Quintero attem

pts to draw inferences from definitions o f “custod y ” and “hospitalize” in other statutes. W e need not consider these, because any such inferences are irrelevant where, as here, the language o f the statute is unam big u o u s. Hughes Air craft C

o. v. Jacobson
, 525 U.S. 4 32, 4 38 (1999) (“[W ]here th e s t a tutory language provides a clear answer, [the inquiry] ends there . . . .”).

W e hold that § 4241(d ) m andates that d istrict courts

comm it m entally incom

petent d e fendants to the custody o f the Attorney General for treatm ent, without discretion f or the court to order a particular treatm ent setting.

2. Attorney General and Bureau of Prison Policies

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

2 The BOP policies r eferenc ed by Quintero are quite general. “‘[H]ospitalization in a suitable facility’ includes the [BOP’s] d esignation of inm ates to m edical referral centers or c o rrectional institutions t hat provide the required care o r treatm ent.” 28 C.F.R. § 549.41; see also BOP P r o g r am S t at em ent P5070.12, at 6–7 (Apr. 1 6, 2008) (“[I]nm ates r eq u i r i n g hospitalization b y statute

. . . will b e desig n a t e d to a Medical Referral Center.”).U N I T E D S TA T E S V

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autom atically hospitalized and that this contravenes her construction of the statute in violation o f th e T ake Care Clause of Article II and genera l se p a ration of powers principles. See U.S. Co n st. art. II, § 3. Quintero offers no particular assessm ent of th e Take Care Clause or the separation of powers. Rather, she asserts that the phrase “as is necessary” in § 4241(d)(1) require s the Attorney General to consider th e n eed for hospitalization to achieve

com petency restoration. Because, in h er view, the p olicies

are inconsistent wi th the statute, Quintero argues that the Attorney General and B OP have faile d to take care that the statute b e faithfully executed. We find no m erit in these argum ents.

Section 4241( d ) grants the Attorney General the dis c retion to “hospitalize” the defendant for treatm ent in a “suitable fac i lity.” The IDRA defines “suitable facility” as treatm ent in a “facility that is suitable t o p rovide care o r treatm ent given the nature of the offense and the characteristics o f the defendant.” Id. § 4247(a)(2). The statute does no t enjoin the Attorney General to choose the lea s t restrictive treatm ent, a judgm ent that would constrain the Attorney General’s options and potentiall y o p en this process to endless litigation over the range of appro p r iate restorative m edical treatm ents.

Qu i nt ero also points to the phrase “as is necessary” i n § 4241(d)(1) as constraining the Attorney General’s choice o f tr e a t ment. This m isreads the statute. Section 4 241(d)(1 ) instructs the Attorney General to hospitalize a m entally incom petent defendant “in a suitable facility” “for s u c h a
reaso n abl e p e riod of tim e, not to exceed four m onths, a s is necessary to determ ine whether there is a s ubstantial probability that in th e foreseeable future he will attain theU N I T E D S TA T E S V

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capacity to perm it the p roceedings to go forward.” 18 U.S.C. § 4241(d)(1) (em

phasis added). The phrase “as is n ecessary”

m odifies “reasonable period of tim e,” not “suitable facility.” It is a tem

poral lim itation, not a m andate to con s ider the necessity of inpatient treatm ent.

The history of the IDRA supports this co n c l u s ion. Congress enacte d § 4241(d) in response to the Suprem e Court’s decision in Jackson v. Indiana
, 406 U.S. 715 (1972). Indiana’s incom

petency statute authorized indefinite

comm itm ent for m entally incom petent defendants. The Suprem e Court held that a defendant “ cannot b e h eld m ore than the reasonable period o f tim e necessary to determ ine whether there is a substantial probability that he will attain [] capacity in the foreseeable future.” Id. at 738. T he tem poral lim itation Congress added to § 4241(d) rem edied this defect in the federal sta tute. See Strong
, 489 F.3d at 1061 (“[Section] 4241(d) wa s enacted in response to the Jackson decision and echoed Jackson ’s language. ” )

. The “as is necessary” langua g e instructs the A ttorney General to give individualized c on s i deration o f the period of tim e—with an outer lim it—necessary to assess and restore com petency. Nothi ng in the Attorney General’s and BOP’s p olicies contravenes § 4241(d).

B. Due Process

Quintero argues that m andatory comm itm ent under 1 8 U.S.C. § 4241(d) raises both substantive and procedura l due process concerns. The Due Process Clause of the F i ft h Am endm ent m andates that “[n]o p erson shall

. . . be deprived of life, liberty, or p roperty, without d ue process of law.” U.S. Co n st. am end. V. The Due P rocess Clause “protects individuals against two types of g overn me n t action”:U N I T E D S TA T E S V

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violations of substantive due process and procedural d ue process. United States v. Salerno
, 481 U.S. 739, 746 (1987). “[S]ubstantive due process p reven t s the governm ent from engaging in conduct that shocks the conscience, or interferes with rights im

plicit in the concept of ordered liberty.” I d

. (internal quotation m arks and citations om itted). P rocedural due process requires that, even where a deprivation of liberty survives substantive due p rocess scrutiny, the action “be im plem e n ted in a fair m anner.” Id. (citing Mathews v. Eldridge
, 424 U.S. 3 19, 335 (1976)). Neither of Quintero’s due process challenges has m erit.

1. Substantive Due Process

Quintero f

irst argues that m andatory c omm itm ent under § 4241(d) violates h er substantive due pro c ess rights. She claim s freedom from confinem ent before trial is a “fundam ental right” and that we m ust apply heightened scrutiny to the custodial provisions of § 4241(d). See LopezValenzuela v. Arpaio
, 7 70 F .3d 772, 780–81 (9th Cir. 2 014) (en banc).

Pretr i a l comm itm ent is “a significant d eprivation o f liberty that requires due process protectio n .” Addington v. Texas
, 441 U.S. 418, 425 (1979). In Jackson v. Indiana
, the Suprem e Co urt addressed the due process requirem ents for pretrial comm itm ent for com petency restoration. 4 06 U.S. at 738. Indiana—as did the United States and other states— provided that m en t a lly incom petent defendants could be confined indefinitely. Id. at 731–36. Th e Suprem e Court held the In d i a n a statute was unconstitutional insofar as it provided for indefinite com m itm ent without “the custom ary civil comm itm ent proceeding that would be r equired to

comm it indefinitely any other citizen.” Id. at 738. The CourtU N I T E D S TA T E S V

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held that a person hospitalized for com petency restorat ion “cannot be h eld m ore th a n th e reasonable period of tim e necessary to determ ine whether there is a substantial probability that he will attain that capacity in the foreseeable future” and that “continued comm itm ent m ust be justified by progress toward” the goal of com petency restorati o n

. 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) com plies with the requirem ents of due process under the fram ework set out in Jackson. W e began from the prem ise that “the right to be free from Governm ent confinem ent

. . . is the very essence of the liberty protected by the D ue P rocess Clause” and that “liberty is the norm , and d e t ention prior to trial or without trial is the carefully lim ited exception.” Id. at 1060 (quoting Reno v. F

lores
, 507 U.S. 2 9 2
, 3 4 6 (1993), and Salerno
, 481 U.S. at 755). First, we foun d th a t “the duration of the defendant’s comm itm e n t” under § 4241 is “inherently lim ited” to “ s u c h a reasonable period of tim e, not to exceed four m o nths, as is n ecessary’” to determ ine the likelihood o f

com petency restoration. Id. at 1061–62 (quoting § 4241(d)). Second, we held that in determ ining whether a “defendant is susceptible to tim ely restoration,” there was a “close[]

. . . fit between the comm itm en t a n d the purpose for which such

comm itm ent is designed.” Id. at 1061. W e noted that “[s]uch

a determ ina t i on requires a m ore careful and accurate diagnosis than the brief interviews an d r e vi ew of m edical records that tend to characteri z e the initial com petency proceeding.” Id. at 1062 (internal qu o t ation m arks andU N I T E D S TA T E S V

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citation om itt e d). W e thus rejected Strong’s argum ent that § 4241(d) violated his substantive due process rights. 3

Quintero acknowledges our decision in Strong b ut argues that, after our en banc decision in Lopez-Valenzuela
, 7 70 F.3d 772, “autom atic detention f or com petency rest oration under § 4241(d) violates due process” because “the statute em ploys

a n irrebuttable presum

ption that d etention is necessa ry. ” According to Quintero, S trong is thus n o l o n ger binding

au thority. W e are not persuaded. In Lopez-Valenzuela we addressed an Arizona statute that categorically denied bail for aliens p resent in the United States illegally who were charged with a f elony 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 cla s s of defendants who were categorically denied bail that, but for their alien status, would have been routinely afforded to them

. W e fail to s e e h ow Lopez-Valenzuela has underm ined o ur decisi o n in Strong

. Section 4241(d) only authorizes “hospitaliz[ation]

. . . in a su i t ab l e facility” for a lim ited purpo s e a n d for “a reasonable period of tim e.” 18 U.S.C. § 4 241(d)(1). Unlike the statute at issue in LopezValenzuela
, persons thought to be m entally incom petent are entitled to a h earing and an individualized determ ination o f their co mpetence. Their custody is only tem porary and, if

3 W e also noted that at least t hree circuits had rejected s i m i lar challenges. Strong
, 489 F. 3 d a t 1063 (citing United States v. F i lippi
, 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 S

trong , several other circuits have upheld § 4241 against v arious 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 ( 2 d Cir. 2008); United States v. F erro , 321 F.3d 7 56, 761–62 (8th Cir. 2003).U N I T E D S TA T E S V

. Q UI N T E RO 15

treatm ent is not successful, m ay lead to th e i r civil

comm itm ent or even to their release. See Jackson
, 406 U.S. at 738.

Quintero also argues that Strong is inconsisten t wi th the Suprem e Court’s d ecisions in Salerno
, 481 U.S. 739, and Sell

v. United States
, 5 39 U.S. 166 (2003). 4 Both o f those decisions were issued well before our opinion in Strong
, and Strong quoted Salerno

. See Stron g , 489 F.3d at 1060. Accordingly, th e y are n ot intervening Suprem e Court authority on which we m ay rely to overturn the judgm ent of

a prior p anel 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, t og e th er with LopezValenzuela
, require “proof b y clear and convincing evidence that no less restrictive alternatives than confinem ent cou l d reasonably address the governm ent’s interest.” The statem ent com es without citation, so we are
unsure of i ts origin. To b e s ure, the phrase “clear and convincing evidence” appears in Salerno
, but that is the l evel of proof r equired by the Bail Reform Act, 18 U.S.C. § 3 142(f), which was at i ssue in Salerno

. See,
e.g. , S alerno
, 481 U.S. at 742, 750–52; s e e a l so Lopez-Valenzuela
, 770 F .3d at 779–80, 782, 785 (referring, i n each instance, to Salerno ). W e cannot locate the phrase “no less r estrictive alternative” (or som e variant) in any of these cases.

In any event, in Strong we did not set forth a form al standard o f scrutiny. W e did use the p hrase “reasonable relation” b ecause that was the standard the Court used in Jackson

. See Strong
, 489 F.3d at 1061 (quoting Jackson
, 406 U.S. at 738 ). El sewhere we com m ented on the “the closeness of the fit” in § 4241(d) “between the comm itm ent and the purpose for which such com m itm ent is designed.” Id.

W e take very seriously our obligation to exam ine our prior decisions in light of subsequent developm ents; we do not lightly overturn one of o ur p ri o r decisions. Q uintero falls well short of persuading us that there are grounds to do so in this case.U N I T E D S TA T E S V

. Q UI N T E RO 16

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 c o n trolling authority

. . . .”). Quintero’s argum ent is sim ply an effort to re-argue Strong
, but we are bound by it. If Quintero believes Strong is wrongly decide d, her rem edy lies in rehearing en banc or certiorari.

In any event, both of those cases d ealt with very different circum stances. Salerno rejected a substantive due process challenge to a Bail ReformAct provision allowing for caseby-case pretrial detention on the basis o f future d an g e r o us ness. 481 U.S. at 746–52. In the sam e vein, Sell concerned forcible m edication to resto re com petence for trial, which the Suprem e Court subjects to a higher standard of review d ue to d efendants’ distinct liberty interest in rejecting invasive m edical treatm ent. 539 U.S. at 177–78, 180–81; see United S tates v. Loughner
, 672 F.3d 731, 747–52, 765 (9th Cir. 2012) (discussing S ell and distinguishing between

comm itm ent f

or com petency restoration under § 4241(d) and involuntary m edication orders).

Quintero also argues that we should overturn Str o ng because it was based on the “faulty prem ise

. . . that inpatient confinem ent is always necessary to achieve the governm ent’s interests” and “[r]ecent em pirical evidence r e futes the prem ise under l ying Strong .” W e see n o such “prem ise” in

o ur de cision. If there is a p rem ise to be had here, it is Congress’s. Neve rtheless, we see no im pedim ent in the statute to the Attorney General—in his discretion, not ours—
c h o o s i ng outpatient treatm ent as the “suitable facility.” 18 U.S.C. § 4241(d); see id. § 4247(a)(2) (defining “s u i t ab le facility” as “ a facility that is suitable to provide care o r treatm ent given the nature of the offense and theU N I T E D S TA T E S V

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characteristics of the defendant” )

. Even if there is recent

em pirical evidence confirm ing the effectiveness of outpatient treatm ent, we cannot revisit Strong.

Fi nally, Quintero points us to a recent decision of th e Georgia Suprem e 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. W e are bound by o ur decision in S trong , and reaffirm that § 4241(d) does not violate Quintero’s substantive due process rights.

2. Procedural Due Process

Quintero argues that m andatory comm itm ent under § 4241(d) violates procedural due p rocess because the statute does n ot provide a suffic i en t adversarial hearing prior to

comm itm ent. Relying o n Vitek v

. Jones
, 445 U.S. 480 (1980), she asserts that a pre-deprivation adversarial hearing specifically addressing the n ecessity of confinem ent is warranted and that the court m ust m ake a finding that outpatient pro g ram s are inadequate because § 4241(d) creates

an exp e ctation that a defendant will not be comm itted to an inpatient f

acility unless it is both “suitable and ne c e ssary.” W e hold that § 4 2 41(d) provides suffic i e n t procedural safeguards prior to comm itm ent, an d thus her comm itm ent does not violate procedural due process.

A “civil comm itm ent for any purpose constitutes a significant deprivation o f liberty that requires due p r ocess protection.” Addington
, 441 U.S. at 425. “When governm ent action d epriving a person of life, liberty, or property survives substantive due process scrutiny, it m u st still be im

plem ented i n a fair m anner.” Salerno
, 481 U.S. at 74 6

. Th e constitutional p rocess due d epends upon “the extent to whichU N I T E D S TA T E S V

. Q UI N T E RO 18

[the individual] m ay b e condemned to suffer g rievous lo s s , and depends upon whether the [individual’s] interest in avoiding that loss outweighs the governm ent a l interest in

summ ary adjudication.” Goldberg v. K elly
, 397 U.S. 254, 262–63 (1970) (internal qu ot ation m arks and citation

om itted); see Mathews , 424 U.S. at 332.

To determ in e whether a pre-deprivation procedure

com ports with due p rocess, we consider: “(1) the private interest affected; (2) the risk of an erroneous deprivation o f that interest and the probable value o f a d ditional procedural safeguards; and (3) the governm ent’s interest including the function involved and the burdens that additional procedural requirem ents w ould place on the state.” Hickey v. Morris
, 722 F.2d 543, 548 (9th Cir. 1 983) (citing Mathews
, 4 24 U.S. at 335).

W e h old that § 4241(d) appropriately balances those interests. First, we r ec o gnize that a pretrial defendant has a significant liberty interest in avoiding pret r i a l confinem ent, including civ i l c o m

m itm ent. See Addington
, 441 U.S. at 4 2 5

– 2 6; see also H

umphrey v. C

ady
, 405 U.S. 504, 509 (1972). E ven i f not a punitive m easure, comm itm ent for evaluation and treatm ent of m ental conditions is a p h y s i cal restraint on liberty and m ay com e with its own social stigm a. Indee d, th e Court has held that even a convicted inm ate is ent i tl e d to som e process before h e m ay be transferred to a

m ental facility, because such h ospitalization is “qualitatively different from the punishm ent characteristically suffe red by a person convicted of a crim e.” Vitek
, 445 U.S. at 493.

Second, the governm ent h as a strong interest in these proceedings. It has charged a defendant such a s Quintero with violation of fe d e r a l law. It has an obligation to try aU N I T E D S TA T E S V

. Q UI N T E RO 19

defendant expeditiously, see U.S. Co n s t

. am end. VI; 18 U.S.C. §§ 3161–3174 (Speedy Trial Act)
, or release the defendant. I t m ay not try a d efendant who cannot aid in his

own d efense, see Pate v. Robinson
, 3 83 U.S. 375, 378 (1966) (citing Bishop v. United States
, 350 U.S. 961 (1956)), and the diagnosis m ay even h ave a bearing on any affirma t i v e defense of m ental im

pairm ent at the tim e of the crim e. If the defendant cannot be tried because he is unable to aid counsel in his defense and he cannot be restor ed to health, the governm ent m ay have to release the defendant. See Jackson
, 406 U.S. at 7 38. But b efore the governm ent so concludes, it has an additional obligation to ensure that the defendant is not

a danger to him self or the p ublic and m ay see k civil

comm itm ent to protect the public. See id. at 733.

Giv en the strong interests o f both the defendant and the governm ent, “[t]he fi nal, and perhaps m ost im portant, Mathews factor is the risk of e rr o neous deprivation and the probable value of additional procedural safeguards.” Humphries v. Cnty. of

Los A ngeles
, 5 54 F .3d 1170, 1194 (9th Cir. 2009), rev’d in p art on other grounds
, 562 U .S. 29 (2010). This prong requires that we exam ine the procedures provided in the IDRA and “ask ‘considerin g the current process, what is the chance the [governm ent] will m a k e a

m istake? ’” Id. W e think the ris k o f error is low. Section 4241 provides extensive safeguards to ensure that

comm itm ent is justified. When q u estions first arise regarding

com peten c y , th e court m

ust order a hearing “if there is reasonable cause to believe that the defendant m ay presently be” incom

petent to stand trial. 18 U.S.C. § 4241(a). Prior to th e hearing, the court h as discretion to order psychiatric or psychological exam inations of the d efendant and that such reports be filed with the court. Id

. § 4 2 4 1(b). T hese exam s

m ust be conducted, and a report prepared, by a l i c en s e d o rU N I T E D S TA T E S V

. Q UI N T E RO 20

c ertified psychiatrist or psychologist, and d efendants may request exam iners in addition to those selected by the court. Id. § 4247(b). The conten t o f th e report is specified by the statute and m

ust include a patient history an d p r esent sym ptom s; a d escription of the tests that were em p loyed; the

exam ining psychiatrist’s or psychologist’s diagnosis and prognosis; and a c onclusion as to whether the person is suffering from m ental im p a i rment that renders him incom petent to assist in his defense. I d

. § 4 2 47(c). The report m ust 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 m ust b e afforded the “opportuni ty to testify, to p resent evidenc e , to subpoena witnesses o n his b ehalf, and to confront and cross-exam ine witnesses wh o appear at the h earing.” Id. § 4241( c ), 4727(d). A fter the hearing, the court m

ust fi n d by a preponderance of the evidence that the defendant is m entally incom petent to stand trial before comm i t t i n g the defendant to the custody o f the Attorney General. Id. § 4241(d).

As we have previousl y s t ated, comm itm ent to the Attorney Ge n e ral for com petency evaluation is durationally lim ited to a “reasonable period of tim e, not to e x c e ed four

m onths, as is necessary to determ ine whethe r there is a substantial p robability that in the foreseeable future [the defendant] w ill attain the capacity to perm it the proceedings to go forward.” Id. § 4 241(d)(1). Hospitalization m ay be extended f

or com petency restora t i o n “for an additional reasonable period of tim e” “if th e court finds that there is a substantial p robability that within such additi on al period o f tim e he will attain the capacity t o p e rm it the proceedings to go forward” or until th e c harges are dropped. Id.U N I T E D S TA T E S V

. Q UI N T E RO 21

§ 4241(d)(2). The defendant m ay “at any tim e during [h i s]

comm itm ent” request a further h e a r i n g to d eterm ine if he should be discharged. Id. § 4247(h). Fina l ly, 18 U.S.C. § 4241(e) provides additional safeguards for release up o n a restoration of competency.

As we consider these procedural safeguards Congress has put in p lace, we are h a rd 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 evi d e n c e , to subpoena w itnesses, to confront and crossexam ine w itnesses, and to seek reconsideration of an adverse decisi o n is the core of Am erican due process. See Vitek
, 445 U.S. at 494–95. Nevertheless, Quintero argues tha t she is entitled to a “predeprivation process” to decide if outpatient treatm ent is suitable. T h i s i s n ot properly a procedural d ue process a rgum ent, but a variation on her substantive d ue process argum ent, wh i c h we h ave rejected. Congress has provided am

ple process f

or d eterm ining whether a defendant is m entally incom

p e te n t and likely to respond to treatm ent. The choice of a facility is within Congress’s prerogative.

W e ha v e little difficulty holding that m andatory

comm itm ent under § 4 2 41(d) com ports with the requirem ents of procedural due process.

C. Equal Protection

Quintero raises three argum ents under the equal protection com

ponent of the Due Process Clause o f the Fifth Am endm ent. W e exam ine equal protection claims under a two-step inquiry, first inquiring whether the petitioner’s class is sim ilarly situated to the claim ed disparate group and, if so, whether the classification is justified. Pi mentel v. Dreyfus
,U N I T E D S TA T E S V

. Q UI N T E RO 22

6 70 F .3d 1096, 1106 (9th Cir. 2012) (per curiam ). W e wi l l consider each argum ent in turn.

Quintero first argues that § 4241(d) denies her e qual protection of the laws because it im poses a les s s tringent standard for confinem ent than the Bail Reform A ct, 18 U.S.C. § 3142(e), which governs release or detention of pretrial defendants. The Bail ReformAct provides in relevant part:

If, after a hearing

. . . , the judicial officer fin d s that n o condition or com bination o f

c on d i t io n s wi l l r e a s o n ab l y a s s ur e th e appearance of the person as required and the safety of any other person and the comm unity, 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 h a s b een confined but, unlike defendants denied bail, she has n ot b ee n fo und to be dangerous. W e think it o bvious that the two situations are not com parable for equ al p rotection purposes. T he purposes of confinem ent under each statute are n ot the sam e: Section 3142(e) ensures that the defendant appears at trial and does not endanger the

comm uni ty , while § 4241(d) aim s to assess the p otential to restore a defendant to com petency to stand trial. The governm ent has different interests for confinem ent of each gro up, a n d thus these two classes of defendants m ay be subject to different standards related to those interests.

Quintero also argues that m entally incom petent pretrial defen d a n t s are subject to less stringent standards for

comm itm ent than convicted p ersons who, having served their sentence, are going to b e comm itted civilly. See 18 U.S.C.U N I T E D S TA T E S V

. Q UI N T E RO 23

§ 4246. Section 4246 governs hospitalization of three classes of m entally im

paired p ersons: (1) convict e d p e rsons whose sentence is about to expire, (2) pretrial d efendants comm itted to the custody of the A ttorney General under § 4241(d), and ( 3 ) pretrial d efendants comm itted under § 4241(d) who s e charges have been dism issed because of their m ental condition. Id. § 4246(a). Section 4246(d) provides:

If, after the hearing, the court f inds by c l e ar and convincing eviden c e that the person is presently s u ffering from a m ental disease o r defect as a result of which h i s r elease would create a substantial risk of b odily injury to another person or serious d am age to property of another, the court shall comm it the pers o n to the custody of the Attorney General.

Again here, the p urposes o f comm itm ent for persons subject to each statute differ: Section 4 24 6 is about protecting the

comm unity from a dangerous and m entally ill defendant who is about to be r e l e a s e d, while § 4241(d) aim s to ensure an accurate assessm ent of com p etency before trial. Including an
assessm ent of danger i n § 4246 directly addresses the statute’s purpose of protecting the comm uni ty , but it serves
no p ur p o s e in the context of a com petency assessm ent. Section 4246 itself rec o g n izes that persons subject to these statutes are not sim ilarly situated. Defendants comm itted pur s u a n t to § 4241(d) m ay b e subject to § 4246 in som e instances because, althou g h not all defendants comm itted pursuant to § 4241(d) are dange r ous, those f ound dangerous—and who could be released a fter the d urational lim it or through the other safety valves—are subject to further hospitalization under § 4246. The consequences also differ: Section 4246 allows for potentially indefinite confinem ent o fU N I T E D S TA T E S V

. Q UI N T E RO 24

a d efe n dant who has already served her sentence, while § 4241(d) allows for confinem en t b e fore trial for only a “reasonable period of tim e.” The stricter standard in § 4246

m akes sense where the period of confinem ent is no t s o lim ited and discharge is conditioned on a findi n g tha t the person is no longer a danger. Id. § 4246(e).

The Suprem e Co urt’s decision in Jackson v. Indiana
, 406 U.S. 7 1 5
, reinforces o ur conclusion. In that case Jackson, who was deaf, m ute, and m entally handicapped, was accused of robbery. Before he could be tried, the court f ound him m entally i n c o mpetent to aid in his defense and

comm it t e d him to the custody of the Indiana Departm ent o f Mental Health until he could be certified as sane. 406 U.S. at 717–18. Because Jackson likely could n ot be reh abilitated, it was effectively a life sentence. See id. at 716. Al th o u gh Jackson had not been co n vi c t e d of any crim e, the standards for his comm itm ent an d the conditions for his release were stricter than for sim ila r l y situated p ersons in the g eneral p op ul ation. The C ourt concluded that Indiana’s scheme violated the Equal Protection Clause of the F ourteenth Am endm ent. Id. at 729–30.

Section 4241(d) does not present the sam e concerns as the Indiana statute at issue in Jackson

. Section 4241(d) d oes not autom atically condemn a m entally incom petent defendant to potentially perm anent comm itm ent. I n s tead, the p eriod o f hospitalization under § 4 241(d) is statutorily lim ited to four

m onths for assessm ent and an additional reasonable period o f tim e if there is a substantial p robability that the defendant can be restored to com

petence. Release is also m andated where, at the end of the tim e period, a “defendant’s m ental condition has not so im

proved a s t o p erm it the proceedings to go forward.” 18 U.S.C. § 4241(d). Any further res tr a i n t o nU N I T E D S TA T E S V

. Q UI N T E RO 25

Qui nt ero’s liberty, such as civil comm itm ent, w ould be subject to other statutory and constitutional constra i nts. Section 4 241(d) thus avoids Jackson ’s c o n cerns with tim e lim its and release m echanism s.
Finally, Quin t ero argues that m andatory confinem ent under § 4241(d) violates her right to equal protection because federal pretrial defendants are subject to a less stringent

comm itm ent standard than Arizona state defendants. See Ariz. R ev. Stat. § 1 3-4512(D) (requiring courts to consider a variety of factors an d s e lect the “least restrictive treatm ent alternative” for c om

p etency restoration). Quintero acknowledges that there is no equal prote ct i o n violation where the federal governm ent treats defendants charged with federal cr ime s differently than a state treats defendants

c h a rged w ith state crim es. United States v. A n telo pe , 430 U.S. 6 41, 649 (1977) (“Under o ur federal system , the National G overnm ent does n ot violate equal protection when its own body of law is evenhanded, regardless of the laws o f States with respec t t o the sam e subject m atter.” (footnotes

om itted)). Nothing el s e n eeds be said regarding our dual sovereignty. Antelope supplies a c o mp l ete answer to Quintero’s argum ent.

D. Fundamental Fairness

Quintero n ext raises a novel claim th a t m andatory

comm itm ent violates fundam ental fairness and a hybrid d ue process/equal protection r i ght recognized by the Suprem e 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 E qual Protection Clause” “ set forth independent principles,” although they “are connected in a profound way.” 576 U.S.U N I T E D S TA T E S V

. Q UI N T E RO 26

at 6 72. The C ourt in Bearden n o ted that in cases concerning indigent d efendants, “[d]ue pro c ess and equal p rotection principles converge,” but that m ost decisions “have rested on an equal protection fram ework.” 461 U.S. at 665.

W e need not parse these cases further. In both Obergefell and Be a rde n , the C ourt considered the convergence of d ue process and equal protection rights the Court had previously recognized. Here
, Qu i n tero argues that w e should find a synergy in these cl au s es that is g reater than either of the cl au s e s individually. But in this case, we h ave rejected Quintero’s du e process and equal protection clause argum e n t s. We decline to create a new right here that is unsupporte d b y either the Due Process Clause or the equal protection component of the Due Process Clause.

E. The Sixth Amendment

Quintero raises a Sixth Am endm ent challen g e to § 4241(d) for the first tim e o n ap p e a l. She argues only that § 4241(d) cou ld create a conflict of interest for counsel in

som e cases, which would b e inconsistent with the Sixth Am endm ent. Sh e does not argue that her own counsel was faced with any conflict here. At b ase, her a rgum ent is that

m andatory comm it m ent under § 4241(d) “m akes effective,

c o n f l i c t

- f r e e r e p r e s e n t a t i o n i m p o s s i b l e i n s o m e circum stances” because defense counsel will face the tension between “[d]oom ing” a client to lengthy hospitalization and allowing an incom

p e te n t client to stand trial. Because Quintero did not raise a Sixth Am endm ent c l aim before the district court, we review her cla i m for plain error. United States v. O lano
, 507 U.S. 7 25, 730–36 (1993) ; s e e Fed. R. Crim . P. 52(b). To succeed, she must dem o nstrate thatU N I T E D S TA T E S V

. Q UI N T E RO 27
(1) there is an error; (2) the erro r i s clear o r obvious, rather than subject t o reasonable dispute; (3) the error affected [her] substantial rights, which in the o rdi n a ry case m eans it affected the outcom e of the district-court proceedings; and (4) th e e rror seriously affected the fairness, integrity, or public reputation of judicial proceedings.

United States v. Walter -Ez e , 869 F.3d 891, 911 (9th Cir. 2017) (citation om itted).

The Sixth Am endm ent guarantees defendants the right to “effective assistance o f counsel,” which includes “a duty o f loyalty” and “a duty to avoid conflicts of interest.” Strickland

v. Washington
, 466 U.S. 668, 6 86, 688 (1984). However, “a reviewin g c o urt cannot presum e that the possibility for conflict has resulted in ineffective assist a nce of counsel.” Cuyler v. S

u llivan
, 4 4 6 U. S. 335, 348 (1980). The Sixth Am endm ent protects defendants only from actual conflicts o f interest—not every potential conflict that could arise. Wheat

v. United Sta t es , 48 6 U.S. 153, 159–60 (1988). Thus, m ere allegations of a p otential conflict of interest are insufficient to dem onstrate a violation of the Sixth Am endm ent. United States v. Hearst , 638 F.2d 1190, 1194 (9th Cir. 1980).

At the outset, Quintero’s failure to allege or dem onstrate any actual conflict o f interest for her counsel doom s her argum ent. Quintero has not shown—or even alleged—an actual conflict of interest in h er counsel’ s representation. Quintero initiated the com petency proceedings here, and she does not argue that h er counsel f iled the m otion for comp e t ency determ ination against her wishes. MandatoryU N I T E D S TA T E S V

. Q UI N T E RO 28

comm itm ent does not viola t e h e r Sixth Am endm ent right to conflict-free representation.

In any event, § 4241(d) d o e s not violate the Sixth Am endm ent. Defense counsel has “a duty to invest i g at e a defendant’s m ental state if there is evidence t o suggest that the defendant is impaired.” Douglas v. Woodford
, 316 F.3d 1079, 1085 (9th Cir. 2 003). A failure to r a i s e com petency with the court m ay deprive a defendant of effective assistance of counsel. Stanle

y v

. Cullen
, 633 F.3d 852, 862 (9th Cir. 2011). But the possibility that cou n sel’s client m ay have to be hospitalized to verify her m enta l co mpetence does not present a real conflict of duties: tem porary confinem ent is a consequence of counsel’s duty to raise the m ental stability o f his client. M o r e over, not every dilemm a presents a conflict of c o nstitutional dim ensions. Counsel often faces difficult and conse qu e ntial choices in determ ining trial strategy: whether to cross-exam ine certain witnesses; whether to raise objections in fron t o f the jury; whether to raise certain affirm ative defenses, including an insanity defense; and whether to m o unt a d efense at all, o r rest on the governm ent’s burden of proof. The fact that counsel has to m ake hard choices, and m a y b e subject to second-guessing by postconviction counsel, is not evidence of a co n fl ict created by the law. Although an increased s e n t e n c e resulting from deficient perform ance by counsel prejudices a defendant and violates the Sixth Am endm ent, Glover v. Uni t e d States
, 531 U.S. 198, 200 (2001), tem porary p retrial hospitalization to assess com

petency is not a sentence. Pretrial d etention provisions are regulatory, n ot punitive. Salerno
, 481 U.S. at 747 (finding that pretrial detention under the Bail Reform A ct was regulatory, not punitive).U N I T E D S TA T E S V

. Q UI N T E RO 29

W e hold that m andatory comm itm en t under § 4241(d) does not violate the Sixth Am endm ent.

F. The Eighth Amendment

Quintero next argues that m andato ry confinem ent o f incom petent defendants pursuant to § 4 241(d) violat e s the Eighth Am endm ent’s prohibition of “[e]xcessive bail.” U.S. Co n s t. am end. VIII. W e are unsure why the E x cessive Ba i l Clause is even relevant h ere. Quintero does not seek bail in this proceeding. W e think that Quintero has attem pted to draw a principle from that Clause that there m ust b e a “weighing of individual factors” and a “constitutional presum ption in favor of release.” Li ke her other constitutional claim s, Quintero’s excessive bail argum ent falls short.

The Bail Reform A ct “requires the re lease of a person fa c i ng trial under the least restrictive condition o r
com bination of condi t i o ns that w ill reasonably assure the appearance of th e p e rson as required and the safety of the

comm unity.” United S

tates v. Gebro
, 9 4 8 F.2d 1118, 1121 (9th Cir. 1 991). S o “when Congress has m andated d etention

on the basis of a com

pelling interest other than prevention o f flight,

. . . the Eighth Am endm ent does not require release on bail.” S a lerno , 481 U.S. at 754–55.

The governme nt has a com pelling interest in ensuring

com petence for trial. It ha s b o th a “substantial interest in tim ely prosecution” and a “conc om itant, constitutionally essential interest in assuring that the defendant’s trial is a fair one.” Sell
, 539 U.S. a t 1 8 0

. The governm ent m ay not

c o nvict a m entally incom petent defendant, Robinson
, 383 U.S. at 378, and it b ears the burden of dem onstrating theU N I T E D S TA T E S V

. Q UI N T E RO 30

defendant’s com

petency, Un i t ed S

tates v. Frank
, 956 F.2d 872, 875 ( 9 th Cir. 1991). E v en if w e thought the Excessive Ba i l Clause h ad som e bearing on our d ecision, these are not sufficient reasons for disapproving the schem e laid o ut in the IDRA.

G. Disability Law

In her fi nal challenge, Quintero argues that m andatory

comm itm ent pursuant to § 4241(d) violates the Rehabilitation Act, 29 U.S.C. § 794(a), and the Am ericans with D isabilities Act, 4 2 U.S.C. § 12132, b oth of which p rohibit discrim ination

on the basis of disability. 5 She further claim s that m andatory

comm itm ent violates the proscription against un j u s tified

5 The Rehabilitation Act provides in relevant part:

No otherwise qualified individual with a disability in the United States

. . . shall, s o l ely by reason of her o r his disability, be excluded f rom the participation in, be denied the b enefits of, or be subjected to discrim ination unde r a ny program or activity receiving Federal financial assistance or under any p rogram or activity conducted by any Executive agency . . . .

29 U.S.C. § 794(a). The D epartm ent of Justice’s ( DOJ) Rehabilitation A ct im plem enting r egulations provide that DOJ “shall adm inister program s and activities in the m ost integrated setting appro priate to the needs o f qualified handicapp ed p ersons.” 28 C.F.R. § 39.130(d). These im plem enting regulations apply “to all program s or activities conducted by” DOJ. 28 C.F.R. § 39.102.

Title II of the ADA provides t hat “no qua l ified i ndividual with a disability shall, by reason of such disability, be exclu d ed from participation in or b e denied the benefits of the services, pro gram s, o r activities of a public entity, or be subjected to discrim ination by any such entity.” 42 U.S.C. § 12132.U N I T E D S TA T E S V

. Q UI N T E RO 31

isolation of the disabled set out by th e Suprem e C ourt in Olmstead v

. L.C. ex rel. Zimring
, 527 U.S. 581, 597 (1999). Quintero cites no authority which perm its her to assert these civil claim s within the context of h er interlocutory crim inal appeal. If Quintero wishes to assert and develop these legal theories, she m

ust do so in the context of a c ivil cause o f action. W e therefore d ecline to reach the me r i ts o f these argum ents here.

IV. CONCLUSION

The district court h ere prop e r ly found Quintero i ncom petent to stand trial and ordered her comm itted to the custody of the Attorney General for inpatient assessm ent and treatm ent. The district court did not have discretion to order alternative outpatient ev a l uation. W e affirm the district court’s com m itm ent order.

ORDER AFFIRMED.