NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v.

SHAWN JAMES SOLEIMANI,

Defendant

- Appellant. No. 19

- 50310

D.C. No.

3:18

- cr

- 03066

- JLS

- 1

MEMORANDUM *

Appeal from the United States District Court

for the Southern District of California

Janis L. Sammartino, District Judge, Presiding

Submitted April 3, 2020 * *

Pasadena, California

Before: WARDLAW, MURGUIA, and MILLER, Circuit Judges.

Shawn James Soleimani appeals the district court ’s order committ ing him to

the Attorney General’s custody for competency restoration under 18 U.S.C. §

4241(d)

. Soleimani argues that the commitment order violate s his c onstitutional

right to equal protection because other defendants on pre

- trial release who

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

APR 8 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2

are not in competency pr oceedings but who require mental health services are

allowed to obtain those services on an outpati ent basis. We have jurisdiction under

the collateral order doctrine, United States v. Friedman , 366 F.3d 975, 980 (9th

Cir. 2004) , and we affirm

.

“ The construction or interpretation of a statute is a question of law that we

review de novo. ” U

nited States v. Cabaccang , 332 F.3d 622, 624

– 25 (9th Cir.

2003) (en banc) (citing United States v. Carranza, 289 F.3d 634, 642 (9th Cir.

2002)). We also review de novo the constitutionality of a statute. United States v.

Vongxay , 594 F.3d 1111, 1114 (9th Cir. 2010).

To succeed on his equal protection claim, Soleimani must first show that the

government treats him differently from similarly si tuated persons. Pimentel v.

Dreyfus , 670 F.3d 1096, 1106 (9th Cir. 2012) (per curiam); United States v. Lopez

Flores , 63 F.3d 1468, 1472 (9th Cir. 1995)

. I f this showing is made, we must then

evaluate “under the appropriate level of scrutiny whether the distinction m ade

between the groups is justified. ” Lopez

- Flores , 63 F.3d at 1472 (citing Plyler v.

Doe, 457 U.S. 202, 217

– 18 (1982) )

.

A de fendant who is incompetent to stand trial is not similarly situated to a

competent defendant with mental health issues on pre

- trial release

. A finding of

incompetency amounts to a legal determination that the defendant “is unable to

understand the nature and consequences of the proceedings against him or to assist3

properly in his defense,” 18 U.S.C. § 4241(d), such that if trial were to proceed, it

would constitute a violation of due process, Cooper v. Oklahoma , 517 U.S. 348,

354 (1996)

. Therefore, an incompetent defendant such as Soleimani is not

similarly situated to defendants on pre

- trial release w hose mental health issues do

not affect competency to stand trial. Because Soleimani has not identified two

si milarly situated groups of people , his equal protection claim fails. Pimentel , 670

F.3d at 1106 (noting that a finding that plaintiff was treated differently than

similarly situated individuals is a threshold showing in the equal protection

analysis).

AFFIRMED

.