United States Court of Appeals, Ninth CircuitMar 3, 2010
368 Fed. Appx. 831 (9th Cir. 2010)

No. 09-30238.

Argued and Submitted February 5, 2010.

Filed March 3, 2010.

Paulette Lynn Stewart, Assistant U.S., Office of the U.S. Attorney, Helena, MT, for Plaintiff-Appellee.

Michael Donahoe, Esquire, Assistant Federal Public Defender, Federal Defenders of Montana Helena Branch Office, Helena, MT, for Defendant-Appellant.

Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. 6:08-cr-00005-DWM-1.

Before: ALARCÓN, W. FLETCHER and RAWLINSON, Circuit Judges.


This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Defendant Lance Kevin Kolesar appeals from the district court's June 8, 2009 order recommitting him to the custody of the Attorney General for the purpose of conducting a dangerousness evaluation pursuant to 18 U.S.C. § 4246(b). A magistrate judge had previously determined under § 4241(d) that Kolesar's condition had not so improved as to permit the proceedings to go forward and recommended that the district court find that he be subject to the provisions of § 4246.

The district court order from which Kolesar appeals is not an appealable order for the purposes of 28 U.S.C. § 1291. In United States v. Ohnick, 803 F.2d 1485 (9th Cir. 1986), we held that "[o]nly after [a § 4246(a)] dangerousness hearing does a commitment order under section 4246 become final. At that point, review is available under 28 U.S.C. § 1291." Id. at 1486.

Here, the director of the medical facility where Kolesar is hospitalized has already issued a dangerousness certificate as required by § 4246(a). Furthermore, the district court for the Western District of Missouri, the district where Kolesar is presently confined, has already held a § 4246(a) dangerousness hearing on which it has yet to rule. Thus, the Missouri district court's determination pursuant to that dangerousness hearing will be a final order from which Kolesar can appeal.


RAWLINSON, Circuit Judge, concurring:

I concur in the determination that this case should be dismissed.