FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SONIA QUINTERO,

Defendant-Appellant.

No. 19-10300

D.C. No.

4:17-cr-01895-

JAS-LAB-1

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 ofthe 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 froma 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

ProgramStatement 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 LopezValenzuela 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 LopezValenzuela, 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 LopezValenzuela, 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 caseby-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 crossexamine 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 ReformAct, 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 fromactual 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 postconviction 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 ReformAct

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.