UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Petitioner-Appellee,

v. No. 97-6372

ALEX ANDERSON,

Respondent-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

W. Earl Britt, Senior District Judge.

(CA-93-552-5-HC-BR)

Submitted: May 19, 1998

Decided: June 8, 1998

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William Arthur Webb, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. Janice McKenzie Cole, United States Attorney, Anne J.

Hayes, Assistant United States Attorney, Barbara D. Kocher, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Alex Anderson appeals the district court's order adopting the report

and recommendation of the magistrate judge and declining to release

him from the custody of the Attorney General pursuant to 18 U.S.C.

§ 4247(h) (1994). Anderson was committed under the provisions of

18 U.S.C. § 4246 (1994), at the expiration of his federal criminal sentence for mailing threatening communications to a female television

broadcaster. He has previously been heard in this court in an attempt

to overturn his initial commitment order, see United States v.

Anderson, No. 93-7218 (4th Cir. Jan. 4, 1995) (unpublished), and

requesting review of a previous unsuccessful motion for release. See

United States v. Anderson, No. 95-7775 (4th Cir. Dec. 23, 1995)

(unpublished).

Anderson was originally committed under § 4246 at the Government's request when the district court found that Anderson was "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." 18 U.S.C.

§ 4246(d). For Anderson to succeed in his renewed attempt to obtain

his release following that finding, the district court must now find by

a preponderance of the evidence that Anderson has recovered from

his mental disease or defect to such extent that his release would no

longer create a substantial risk. See 18 U.S.C. § 4246(e). That finding

will not be overturned on appeal unless it is clearly erroneous. See

United States v. Cox, 964 F.2d 1431, 1433 (4th Cir. 1992); United

States v. S.A., 129 F.3d 995, 1000 (8th Cir. 1997) cert. denied, 66

U.S.L.W. 3591 (U.S. Mar. 9, 1998) (No. 97-7733).

As has been the case previously for Anderson, the parties agree that

he suffers from a delusional mental illness. Once again, however, the

parties disagree regarding the district court's determination that

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Anderson would pose a substantial risk of bodily injury to another

person upon his release. In reaching his conclusion that Anderson

would present a substantial risk if released, the magistrate judge relied

on the testimony of Dr. Bruce R. Berger, a medical doctor specializing in psychiatry. Dr. Berger had been Anderson's primary psychiatrist for approximately nine months when he testified at Anderson's

hearing. Based on Anderson's mental illness, Dr. Berger concluded

that Anderson would pose a danger to others. The magistrate judge

noted that even after the hearing, Anderson continued to send letters

to female broadcasters. Additionally, the magistrate judge concluded

that based on Anderson's own testimony, he had little awareness of

his own mental illness and the impact of his actions on other people.

Finally, the magistrate judge noted from the record that Anderson's

mental condition continued to deteriorate notwithstanding his compliance with Dr. Berger's regimen of antipsychotic medication.

Anderson suggests on appeal that because there was little evidence

of recent violent behavior introduced at the hearing, the Government

failed to prove that Anderson posed a substantial risk to others. The

brief on appeal cites the testimony of three employees of FCI-Butner

who appeared on Anderson's behalf at the hearing. Each staff member testified that Anderson was generally friendly and cooperative.

Although Anderson's counsel admits that the letter Anderson sent to

a CNN anchor was "inappropriate and was undoubtedly unnerving,"

counsel contends that it was not evidence that Anderson posed a substantial risk of bodily harm.

As a threshold matter, Anderson mistakes the burden of proof

applicable to his pursuit of his release. The language of the statute

provides that the court must find "by a preponderance of the evidence

that the person has recovered . . . to such an extent that . . . his release

would no longer create a substantial risk of bodily injury." 18 U.S.C.

§ 4246(e). As a result, the Government no longer bears the burden of

proving dangerousness. See 18 U.S.C. § 4246(d). Rather, Anderson

must present a preponderance of evidence proving his release "no longer create[s] a substantial risk of bodily injury." Despite counsel's

contention to the contrary, we are not left with a"definite and firm

conviction that a mistake has been committed" by the district court in

accepting the proposed findings of fact and recommendation of the

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magistrate judge. United States v. United States Gypsum Co., 333

U.S. 364, 395 (1948).

The magistrate judge gave more weight to the testimony and

reports of Dr. Berger than to Anderson's lay witnesses and his own

self-serving testimony. Even if it were appropriate to reweigh this testimony, and it is not, see Glasser v. United States, 315 U.S. 60, 80

(1942), there is no hint of error in that decision. Anderson's letter

asserts that the recipient would be required to bear his children and

that he would choose "one girl from the subway and . . . move in with

her on the following day." Although counsel attempts to downplay the

letter's ominous tone, Anderson's statements are fraught with the possibility, if not the likelihood, of Anderson inflicting some bodily harm

to bring his plans to fruition. Moreover, his detailed description of his

sexual desires and preferences bear some implication that he would

not be above utilizing physical force to satisfy his cravings.

With this evidence of record, we are not left with"the definite and

firm conviction that a mistake has been committed." Consequently,

we have no difficulty in concluding that the district court did not err

in accepting the report and recommendation of the magistrate judge

and declining to find that Anderson was ready to be released. Accordingly, we affirm the district court's order. We dispense with oral argument because the facts and legal contentions are adequately presented

in the materials before the Court and argument would not aid the decisional process.

AFFIRMED

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