[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-11898

Non-Argument Calendar

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D.C. Docket No. 2:15-cr-00199-MHT-SRW-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

ELDRICK DEON MCNEAL, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

________________________

(September 21, 2021)

Before WILLIAM PRYOR, Chief Judge, BRANCH and LUCK, Circuit Judges.

PER CURIAM: 

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Eldrick Deon McNeal appeals the denial of his motion for immediate release

and for dismissal of his indictment. McNeal sought release from the custody of the 

Attorney General in a prison mental facility in Butner, North Carolina, where he 

was undergoing treatment to restore his competency to stand trial. See 18 U.S.C. 

§ 4241. Because the order denying McNeal’s motion is not a final order and does 

not qualify for immediate appeal under the collateral order doctrine, we dismiss his 

appeal for lack of jurisdiction.

After McNeal entered a plea of guilty for possessing a firearm as a felon, id.

§ 922(g)(1), but before sentencing, the district court found him incompetent to 

stand trial and allowed him to withdraw his plea of guilty. The district court then 

commenced the statutory process used to determine McNeal’s competency to 

proceed. See id. § 4241. 

That process requires that the district court determine whether a defendant is 

suffering from a mental disease or defect, id. § 4241(a), and if he is incompetent, to 

commit him to the custody of the Attorney General for four months or “for an 

additional reasonable period of time” for treatment to determine whether there is a 

substantial likelihood that doctors can restore his competency, id. § 4241(d)(1)-(2).

If the defendant’s condition does not improve, id. § 4241(d), “the court for the 

district in which [he] is confined” must decide whether to refer him for civil 

commitment, id. § 4246. If the director of the mental health facility certifies that 

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the defendant’s “release would create a substantial risk of bodily injury to another 

person or serious damage to property of another,” id. § 4246(a), the defendant is 

entitled to a hearing to determine whether the official correctly certified him as 

dangerous and whether he requires further detention, id. § 4246(c)–(d).

In February 2016, the district court committed McNeal to the custody of the 

Attorney General to determine if there was a substantial probability that McNeal

could stand trial in the foreseeable future. See id. § 4241(d)(1). Doctors opined that 

McNeal could improve, and in October 2016, McNeal agreed to remain at Butner 

to undergo mental treatment. See id. § 4241(d)(2). On four occasions between 

March 2017 and March 2019, McNeal’s condition improved and then declined

before his scheduled competency hearings. 

In April 2019, the district court held a hearing, declared McNeal 

incompetent, and ordered the Attorney General to determine within 120 days 

whether McNeal could regain competency. See id. § 4241(d)(1). In November 

2019, after reviewing a report from a forensic psychologist and consulting with 

defense counsel and the government, the district court decided that that it would 

rule on McNeal’s restorability, see id. § 4241(d), and his dangerousness, see id.

§ 4246(d), after receiving an update on his condition, see id. § 4246(a). In March 

2020, doctors reported that McNeal posed a risk of harm to the public and to 

property.

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McNeal moved for immediate release and for dismissal of his indictment. 

He argued that he was not properly in the custody of the Attorney General because 

he had been hospitalized beyond the four-month statutory deadline to determine his 

competency to proceed, see id. § 4241(d)(1), and because no prison official had 

certified that he was dangerous, see id. § 4246(a). McNeal also argued that his 

prolonged detention violated his right to due process.

On May 5, 2020, the district court denied McNeal’s motion. The district 

court ruled that the four-month deadline was enforceable, but McNeal had waived 

the deadline by agreeing through counsel to remain at Butner for treatment and, in 

the alternative, the relief he could receive of being released from the mental 

hospital and resuming his trial proceedings would not serve his best interest. The 

district court also ruled that the alleged violation of the deadline would not entitle 

McNeal to dismissal of his indictment and that he had not been denied due process.

On May 15, 2020, the district court held an evidentiary hearing and 

determined that McNeal was incompetent and unlikely to have his competency

restored in the foreseeable future. Id. § 4241(d). The district court ordered the 

Bureau of Prisons to provide mental treatment for McNeal pending a hearing 

regarding his dangerousness, id. § 4246(a), which defense counsel and the 

government agreed should be determined by a district court in North Carolina.

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In June 2020, the Eastern District of North Carolina received a certificate of 

dangerousness from Butner. See id. § 4246(a). McNeal moved to dismiss the 

certificate as defective on the ground it issued after the four-month deadline. See 

id. § 4241(d)(1). Later, he reasserted the same argument in a petition for a writ of 

habeas corpus. 28 U.S.C. § 2241. The North Carolina district court dismissed 

McNeal’s petition without prejudice. McNeal is awaiting a ruling on his motion to 

dismiss.

We review only the denial of McNeal’s motion for immediate release and to 

dismiss his indictment. McNeal’s pro se notice of appeal stated that he was 

challenging “the order on 5/5/2020,” and he never moved for leave to amend his 

notice after we appointed new appellate counsel. Moreover, the only ruling of the 

district court that McNeal challenges in his opening brief is “the order denying 

[his] request for release from custody and dismissal of his charges.” 

McNeal argues that the delay in certifying him as dangerous affects the right 

of the government to civilly commit him, but that issue is not properly before us.

The district court never addressed the certificate of dangerousness that Butner 

officials filed in June 2020 in the North Carolina district court. And that district 

court has pending litigation involving the certificate.

We must dismiss McNeal’s appeal for lack of jurisdiction. Only “final 

decisions of the district courts” are appealable. 28 U.S.C. § 1291; Flanagan v. 

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United States, 465 U.S. 259, 263 (1984). An order denying immediate release and 

dismissal of an indictment pending a determination of a defendant’s competency to 

stand trial does not “end[] the litigation on the merits and leave[] nothing for the 

court to do but execute the judgment.” See Coopers & Lybrand v. Livesay, 437 

U.S. 463, 467 (1978) (internal quotation marks omitted); Catlin v. United States, 

324 U.S. 229, 236 (1945) (“denial of a motion to dismiss, even when the motion is 

based upon jurisdictional grounds, is not immediately reviewable”).

“We apply the final judgment rule with utmost strictness in criminal cases

unless the challenged order falls within the collateral order doctrine . . . .” United 

States v. Shalhoub, 855 F.3d 1255, 1260 (11th Cir. 2017) (internal quotation marks 

and citation omitted). That doctrine “permits appellate review of an interlocutory 

order that (1) conclusively determines the disputed question, (2) resolves an 

important issue completely separate from the merits of the action, and (3) is 

effectively unreviewable on appeal from a final judgment.” Id. (alterations 

adopted). The order “must constitute a complete, formal and, in the trial court, final 

rejection, of a claimed right where denial of immediate review would render 

impossible any review whatsoever.” Firestone Tire & Rubber Co. v. Risjord, 449 

U.S. 368, 376 (1981) (internal quotation marks and citations omitted).

The order denying McNeal’s motion is not an appealable interlocutory order. 

The refusal to immediately release McNeal does not conclusively determine his 

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commitment to the custody of the Attorney General. Nor does the order involve an 

important question that would be effectively unreviewable after final judgment, 

such as being deprived of liberty to undergo an inpatient competency examination, 

see United States v. Donofrio, 896 F.2d 1301, 1302–03 (11th Cir. 1990) (relying 

on United States v. Gold, 790 F.2d 235 (2d Cir. 1986)), or being medicated 

involuntarily, see Sell v. United States, 539 U.S. 166 (2003). The order also did not 

conclusively determine the disposition of McNeal’s criminal charge. And the 

argument McNeal made to dismiss his indictment based on the delay in 

determining his competency is, in effect, a claim that he has been denied the right 

to a speedy trial, which is not subject to interlocutory review. See United States v. 

MacDonald, 435 U.S. 850 (1978); see also United States v. Deshazer, 451 F.3d 

1221, 1222 (10th Cir. 2006) (dismissing the appeal of an interlocutory order 

denying dismissal of an indictment during competency proceedings).

A refusal to review the order at this stage also does not “practically defeat 

[McNeal’s] right to any review at all” as required to invoke jurisdiction under the 

collateral order doctrine. See Flanagan, 465 U.S. at 265 (quoting Cobbledick v. 

United States, 309 U.S. 323, 324–25 (1940)). Federal law provides that “counsel 

for [McNeal] or his legal guardian may, at any time during [his] commitment, file 

with the court that ordered the commitment a motion for a hearing to determine 

whether [he] should be discharged from [the] facility . . . [where he] is committed.” 

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See 18 U.S.C. § 4247(h). If the North Carolina district court denies McNeal’s 

motion to dismiss, he is entitled to a dangerousness hearing, see id. § 4246(c)–(d), 

which will result in a final judgment that he can appeal. And if the North Carolina 

district court delays McNeal’s proceedings, he can petition for a writ of habeas 

corpus to challenge the legality of his detention. See id. § 4247(g). No basis exists 

for this Court to exercise jurisdiction over McNeal’s appeal.

We DISMISS McNeal’s appeal for lack of jurisdiction.

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