UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-6162

UNITED STATES OF AMERICA,

Petitioner - Appellee,

v.

JOHN MCDONALD,

Respondent - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. W. Earl Britt, Senior 

District Judge. (5:97-hc-00152-BR)

Submitted: July 2, 2013 Decided: July 12, 2013

Before KING, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James B. Craven, III, Durham, North Carolina, for Appellant. 

Thomas G. Walker, United States Attorney, Jennifer P. MayParker, Jennifer D. Dannels, Assistant United States Attorneys,

OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, 

for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

In this appeal, John McDonald, who has been in the custody 

of the Attorney General almost continuously since 1997 pursuant 

to 18 U.S.C. § 4246, argues that the district court erred by 

finding that he continued to meet the criteria for civil 

commitment because the court had not received for consideration 

a plan for McDonald’s conditional release, as required by

§ 4246. Upon our review of the record and the parties’ 

arguments, we affirm the district court’s judgment.

I.

In August 1994, McDonald was convicted on charges of 

assaulting a federal officer, and he was sentenced to a threeyear term of imprisonment. McDonald, who has a long history of 

mental illness and suffers from Schizoaffective Disorder, 

Bipolar Type, was committed to the custody of the Attorney 

General for care and treatment while incarcerated, pursuant to 

18 U.S.C. § 4244. In June 1997, near the expiration of his 

prison term, McDonald was civilly committed pursuant to § 4246 

on the basis that he was “suffering from a mental disease or 

defect as a result of which his release would create a 

substantial risk of bodily injury to another person or serious 

damage to property of another.” 18 U.S.C. § 4246(a).
3

In December 2001, the district court conditionally released 

McDonald, who was subject to certain requirements of care and 

treatment upon his release. In December 2002, after he 

“exhibit[ed] loud, intrusive, and disrespectful behavior” toward 

the staff and residents of the group home in which he was 

living, the district court revoked McDonald’s conditional 

release and ordered that he be returned to the custody of the 

Attorney General. In February 2004, the district court again 

conditionally discharged McDonald from civil commitment, but his 

release was revoked in September 2004 after he engaged in a 

pattern of threatening and other disruptive behavior toward 

residents and staff of the psychiatric center in which he was 

residing.

At McDonald’s request, the district court convened a 

hearing in December 2012 to determine whether McDonald still met 

the criteria for civil commitment under § 4246. A few months 

before the district court ordered this hearing, Ralph Newman, 

M.D., a staff psychiatrist at the Federal Medical Center in 

Butner, North Carolina (FMC Butner), the facility in which 

McDonald is confined, prepared an annual report (the annual 

report) concerning McDonald’s mental health. Dr. Newman 

concluded in the annual report that it would be appropriate to 

release McDonald from civil commitment “under a planned regimen 

of care and supervision.” After the preparation of this report, 
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and more than one month before the December 2012 hearing, a 

staff social worker at FMC Butner sent to the United States 

Probation Office (USPO) in Syracuse, New York a proposed 

conditional release plan for McDonald. The USPO did not act on 

the proposed release plan before the district court’s hearing.1

At the hearing, Dr. Newman was the sole witness presented 

by either party. During his testimony, Dr. Newman reiterated 

the conclusion from his annual report that McDonald could be 

released to the community “with an appropriate controlling plan” 

of care and supervision. Dr. Newman further testified that 

McDonald’s release plan had been sent to the probation office 

but the plan had not yet been “signed off on by everybody.”

Following Dr. Newman’s testimony, the district court 

concluded that because it had not received the release plan, the 

court was required, “purely as a matter of procedure,” to find 

that McDonald “still [met] the criteria for commitment” under § 

4246.”2

 Nevertheless, the court indicated that it likely would 

 1 McDonald states in his brief that a U.S. Probation Officer 

“gave [the plan] her blessing and approval” in late January 

2013, but there is no evidence in the record supporting this 

assertion.

2 McDonald’s counsel did not challenge during the hearing 

the district court’s conclusion that the court could not release 

McDonald without first receiving and approving the conditional 

release plan. Instead, McDonald’s counsel expressed optimism 

that the release plan would be presented to the court 

“hope[fully] within the next day or so . . . [m]aybe next week. 

(Continued)
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approve the release plan upon its submission to the court. The 

court later entered an order finding that McDonald continued to 

meet the criteria for civil commitment because he currently 

“suffer[s] 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.” 

McDonald timely filed a notice of appeal from the district 

court’s judgment.3

II.

We review for clear error the district court’s factual 

determination under § 4246 denying a person’s release from civil 

confinement. See United States v. Cox, 964 F.2d 1431, 1433 (4th 

Cir. 1992). To discharge a person who has been subject to civil 

commitment under § 4246, a court must find by a preponderance of 

the evidence that the person has recovered from his mental 

disease or defect such that either: (1) his unconditional 

 

I hope it’s no later than next week.” McDonald’s counsel 

further stated at the hearing that he “hope[d] that the 

government will expedite [the matter] as much as possible.” 

However, the record before us does not show that a release plan 

ultimately was submitted to the court for review.

3 The district court later set a hearing date of October 3, 

2013, for a new proceeding in which McDonald’s civil commitment 

status again will be evaluated.
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release would no longer create a substantial risk of danger to 

the person or property of another; or (2) his conditional 

release under a prescribed regimen of medical, psychiatric, or 

psychological care or treatment, approved by the court and the 

director of the facility in which the person is committed, would 

no longer create a substantial risk of danger to the person or 

property of another. 18 U.S.C. § 4246(e).

McDonald argues that the district court erred in concluding 

that he continues to meet the criteria for confinement under § 

4246. After reviewing the record and affording the district 

court the deference required under our review for clear error, 

we disagree with McDonald’s argument. The annual report 

prepared by Dr. Newman, and the testimony he provided during the 

hearing, established that McDonald would not be a danger to 

himself or others upon his release only if he were subject to 

“an appropriate controlling plan” of care and supervision. 

However, such a plan had not been certified to the district 

court by the Warden at FMC Butner,4 nor had the court been 

 4 As a requirement for discharge from civil commitment, the 

“director of the facility in which a person is hospitalized,” 

here, the Warden at FMC Butner, must file a certificate with the 

clerk of the court that ordered the commitment. 18 U.S.C. 

4246(e). That certificate must state that the Warden at FMC 

Butner has determined that McDonald “has recovered from his 

mental disease or defect to such an extent that his release 

would no longer create a substantial risk of bodily injury to 

another person or serious damage to property of another.” Id. 

(Continued)
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afforded the opportunity to review a plan for McDonald’s 

conditional release as of the December 2012 hearing. 

Section 4246(e)(2)(A) mandates that the district court 

determine that such a conditional release plan is “appropriate” 

before the court may order the conditional release of a person 

who has been civilly committed. Because the district court was 

not presented with a conditional release plan for review and 

approval, the court did not err in holding that McDonald should 

remain in the custody of the Attorney General.

We observe the troubling circumstance that McDonald’s 

release from civil commitment has been delayed by the 

government’s unexplained failure to process the release plan 

submitted by FMC Butner staff to the USPO in November 2012, in 

time to be considered by the district court at the December 2012 

hearing. However, McDonald did not seek, either in this Court 

or in the district court, an order compelling the government to 

finalize and approve McDonald’s release plan. Nor did McDonald 

request that the district court withhold its determination in 

the present case pending receipt of the release plan.

 

In proceedings concerning a conditional release from civil 

commitment, as is the case here, the Warden at FMC Butner must 

also certify to the court that McDonald’s conditional release 

plan is appropriate. 18 U.S.C. § 4246(e)(2)(A).
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We further observe that the district court has granted 

McDonald’s request for a new hearing, as permitted under 18 

U.S.C. § 4247(h), and that this hearing is scheduled to take 

place on October 3, 2013. We strongly advise that, in advance 

of this upcoming hearing, the government work with the Warden at 

FMC Butner to expedite the processing of the Warden’s 

certification to enable the district court to consider the plan 

as required by § 4246(e)(2). We affirm the judgment of the 

district court, and dispense with oral argument because the 

facts and legal contentions have been adequately presented and 

argument would not aid the decisional process.

AFFIRMED