United States v. Akere , 14 F. App'x 292 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Petitioner-Appellee
v.  No. 00-7523
OLAWALE AKERE,
Respondent-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CA-00-282-5-BO(2))
Submitted: June 29, 2001
Decided: August 1, 2001
Before WILKINS and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Michael D. Bredenberg,
Special Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
2 UNITED STATES v. AKERE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Olawale Akere, a federal prisoner confined at the Federal Correc-
tional Institution at Butner, North Carolina (FCI-Butner), appeals the
district court’s order adopting the report and recommendation of the
magistrate judge and finding that he suffers "from a mental disease
or defect for the treatment of which he is in need of custody for care
and treatment." 18 U.S.C. § 4245 (1988). Upon review of the briefs
on appeal and the record before the court, we affirm.
The district court properly grants a § 4245 motion if the govern-
ment proves by a preponderance of the evidence that the inmate cur-
rently suffers from a mental disease or defect requiring "custody for
care or treatment in a suitable facility." United States v. Baker, 45
F.3d 837, 840 (4th Cir. 1995). The district court’s determination of
this issue is one of fact, which is reviewed by the appellate court
under a clearly erroneous standard. See United States v. Steil, 916
F.2d 485, 487 (8th Cir. 1990). A finding is clearly erroneous when
"the reviewing court is left with the definite and firm conviction that
a mistake has been committed." Faulconer v. Commissioner, 748 F.2d
890, 895 (4th Cir. 1984). At the hearing on the government’s motion
to determine Akere’s present mental condition, the magistrate judge
considered Akere’s own testimony, two psychiatric evaluations, and
the testimony of Dr. Bruce Berger, a psychiatrist from FCI-Butner.
In light of the fact that both psychiatric evaluations concluded that
Akere was suffering from a mental disease or defect requiring custody
for care or treatment in a suitable facility and Akere presented no evi-
dence to the contrary other than his own self-serving assertions, we
have no difficulty in concluding that the district court’s determination
was not clearly erroneous. In addition, contrary to counsel’s assertion,
we find no support in the statute or in this court’s precedent* for the
*We find that a fair reading of the language in United States v.
Muhammad, 165 F.3d 327, 334 (5th Cir. 1999), upon which Akere relies
UNITED STATES v. AKERE 3
proposition that the district court erred in committing Akere without
a finding of dangerousness. See 18 U.S.C. § 4245.
Accordingly, 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 the court and argument would not
aid the decisional process.
AFFIRMED
for this proposition, suggests that the Fifth Circuit was paraphrasing the
Appellant’s argument rather than imposing an additional requirement of
a finding of dangerousness. See id.