United States v. John Sellers , 549 F. App'x 139 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6863
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
JOHN SELLERS,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:00-hc-00567-BR)
Submitted: November 26, 2013 Decided: December 10, 2013
Before NIEMEYER, KING, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Joseph Bart
Gilbert, Assistant Federal Public Defender, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Jennifer D. Dannels, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Sellers appeals the district court’s order
finding that he violated the terms of his conditional release
pursuant to 18 U.S.C. § 4246(e) (2012), and recommitting him for
treatment of his mental disease. Sellers contends that the
court failed to find facts sufficient to support its conclusion
that his continued release posed a risk to persons or property.
We affirm.
When a district court is asked to revoke an
individual’s conditional release, it must hold a hearing to
determine whether the [individual in question] should
be remanded to a suitable facility on the ground that,
in light of his failure to comply with the prescribed
regimen of medical, psychiatric, or psychological care
or treatment, his continued release would create a
substantial risk of bodily injury to another person or
serious damage to property of another.
18 U.S.C. § 4246(f) (2012). Accordingly, a district court may
revoke conditional release upon two findings: “that the
individual failed to comply with his treatment regimen and that
his continued release would create a substantial risk of bodily
injury to another.” United States v. Mitchell, 709 F.3d 436,
443 & n.17 (8th Cir. 2013).
Generally, a district court’s findings of fact under
18 U.S.C. § 4246(f), including an individual’s risk to other
persons or property, are reviewed for clear error while its
legal conclusions are reviewed de novo. See id.; United States
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v. Woods, 995 F.2d 894, 895-96 (9th Cir. 1993); see also United
States v. Cox, 964 F.2d 1431, 1433 (4th Cir. 1992) (indicating
similar standard in review of denial of unconditional release).
However, because Sellers failed to raise any relevant objection,
we review for plain error. See Fed. R. Crim. P. 52(b);
Henderson v. United States, 133 S. Ct. 1121, 1124–25 (2013);
United States v. Olano, 507 U.S. 725, 732 (1993). To establish
plain error, Sellers must show: (1) there was error; (2) the
error was plain; and (3) the error affected his substantial
rights. Id.
Although the district court’s explanation of its
reasoning was brief, Sellers’ admitted, repeated violations of
the conditions of his release, elucidated by the balance of the
record, adequately supported the conclusion that Sellers’
continued release would pose a sufficient risk to other persons
or property. See Mitchell, 709 F.3d at 443 (considering
probation officer’s report attached to government’s motion for
revocation of conditional release when determining whether
district court’s factual findings were clearly erroneous).
Sellers’ mental health records indicated that he had a history
of violence, was an alcoholic, and was initially incarcerated
for illegal possession of a firearm in a Central Intelligence
Agency installation. Despite his alcoholism, Sellers
demonstrated an unwillingness to abstain from alcohol, resulting
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in his arrest. Less than a year later, Sellers’ mental
condition exhibited a precipitous decline, and Sellers refused
to take increased medication to control his worsening delusions—
delusions that caused Sellers to behave irrationally and become
aggressive toward his family members and strangers. Sellers
also failed to maintain appropriate contact with his probation
officer.
Accordingly, we conclude that Sellers’ threat to
others was clearly exhibited by his willingness to engage in
risky, noncompliant behavior, such as consuming alcohol and
refusing medication. That threat was made all the more concrete
by Sellers’ documented history of violence and weapons
possession and the fact that Sellers’ delusions of unjust
persecution were causing him to exhibit aggression toward his
family and those in his immediate community, individuals who
quite plausibly could be harmed by Sellers. See United States
v. Sahhar, 917 F.2d 1197, 1207 (9th Cir. 1990) (“[A] finding of
‘substantial risk’ under [§] 4246 may be based on any activity
that evinces a genuine possibility of future harm to persons or
property.”); see also United States v. Williams, 299 F.3d 673,
677-78 (8th Cir. 2002) (finding of substantial risk supported by
evidence of delusions and refusal to participate in mental
health assessment); United States v. Ecker, 30 F.3d 966, 970
(8th Cir. 1994) (finding actual violent conduct, threatening
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letters, history of drug abuse, weapons possession, and failure
to take prescribed medication supported finding of probable
dangerousness).
We therefore conclude that the district court
committed no error—plain or otherwise—in revoking Sellers’
conditional release, and 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
this court and argument would not aid the decisional process.
AFFIRMED
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