UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-7150

TYRONE SIMMONS,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, District Judge.

(CA-95-322-5-BO)

Submitted: March 19, 1996

Decided: April 1, 1996

Before MURNAGHAN and LUTTIG, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

G. Alan DuBois, Assistant Federal Public Defender, Raleigh, North

Carolina, for Appellant. Janice McKenzie Cole, 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Unpublished opinions are not binding precedent in this circuit.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:

Tyrone Simmons seeks review of the district court's order finding

that he suffers from a mental disease or defect requiring custody of

care or treatment in a suitable facility pursuant to 18 U.S.C. § 4245

(1988). Simmons does not challenge the court's finding that he suffers from a mental disease, and the record is uncontradicted on the

point that he suffers from paranoid schizophrenia. He contends, however, that the court erred by finding that his disease was so debilitating that it warranted transferring him to a psychiatric hospital against

his will. He argues that the primary purpose of such institutionalization will be to forcibly subject him to psychotropic medication, and

avers that such treatment is unnecessary, relying on the testimony of

Dr. Owens, Simmons's treating psychiatrist, that it is possible to

maintain him in the general population without such medication.

To justify Simmons's involuntary commitment, the Government

had to prove, by a preponderance of the evidence, that he suffers from

a mental disease or defect which requires custody of care or treatment

in a suitable facility. See United States v. Baker, 45 F.3d 837, 840 (4th

Cir. 1995). As with the issue of whether Simmons suffers from a

mental disease, the medical evidence of record is uncontradicted as

to whether Simmons's disease requires custody and treatment in a

psychiatric facility. Both Dr. Owens, and Dr. Royal, a court appointed

psychiatrist, agreed that Simmons needs such treatment. We therefore

find that the district court's determination that the Government carried its burden on this point was not clearly erroneous. See United

States v. Steil, 916 F.2d 485, 487 (8th Cir. 1990) (citing standard of

review).

As for the possibility that Simmons will involuntarily receive psychotropic medication during his commitment, we note that the record

does not disclose that this decision has yet been made. Moreover, the

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issue was not passed on below, and is improperly raised for the first

time on appeal. See Singleton v. Wulff, 428 U.S. 106, 120 (1976). We

therefore decline to consider this issue.

Accordingly, the order of the district court is affirmed. 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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