UNITED STATES v. THOMAS (2018)

MEMORANDUM **

Defendant-Appellant Donnell Thomas brings this interlocutory appeal challenging the district court's order extending pretrial commitment for an additional 120 days for possible restoration of competency. We affirm.

Thomas first contends that the district court failed to apply the correct legal standard. While the order itself, drafted by Thomas's counsel, did not reference the standard, the record makes it abundantly clear that the district court applied the proper standard: whether there is a “substantial probability” that he would be restored to competence within an additional reasonable period of time. 18 U.S.C. § 4241(d)(2)(A); see United States v. Loughner, 672 F.3d 731, 769–70 (9th Cir. 2012).

We find no clear error in the district court's determination that the appropriate standard was satisfied. See Loughner, 672 F.3d at 770–72. The court's determination was supported by Dr. Tyner's opinion, which was, in turn, based on dozens of interactions with Thomas. The request for a Sell hearing was premature, and the 120-day extension was reasonable under the circumstances, see Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), U.S. v. Rivera-Guerrero, 426 F.3d 1130, 1137 (9th Cir. 2005) (explaining that Sell hearings are disfavored and that such hearings adjudicate whether a person should be involuntarily medicated when attempting to restore the person to competency). The district court correctly concluded that the attorney general should determine whether to file a dangerousness certificate upon a finding that Thomas cannot be restored. 18 U.S.C. §§ 4241(d), 4246.

The government's request to supplement the record (Dkt. Nos. 20–22) is denied. The district court must now determine what further proceedings are appropriate.

AFFIRMED.