United States of America v. Donnell Thomas

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONNELL THOMAS,
Defendant-Appellant.
No. 18-50123
D.C. No.
3:16-cr-02557-BEN-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted August 14, 2018
San Francisco, California
Before: SCHROEDER, SILER,** and MURGUIA, Circuit Judges.
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.
FILED
AUG 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

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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 (1972), Rivera-Guerrero, 426 F.3d at 1137
(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.
2

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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.
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