United States v. Pedro Godinez-Ortez ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-50337
Plaintiff-Appellee,
v.  D.C. No.
3:07-CR-01046-L-1
PEDRO GODINEZ-ORTIZ,
Defendant-Appellant.

In re: PEDRO GODINEZ-ORTIZ, 
PEDRO GODINEZ-ORTIZ,
Petitioner,
No. 08-73791
v.
UNITED STATES DISTRICT  D.C. No.
3:07-CR-01046-L-1
COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA (SAN OPINION
DIEGO),
Respondent,
UNITED STATES OF AMERICA,
Real Party in Interest.

Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted
January 15, 2009—Pasadena, California
Filed April 29, 2009
Before: Stephen S. Trott, Andrew J. Kleinfeld and
Raymond C. Fisher, Circuit Judges.
5011
5012 UNITED STATES v. GODINEZ-ORTIZ
Opinion by Judge Trott
UNITED STATES v. GODINEZ-ORTIZ 5015
COUNSEL
Shereen J. Charlick and Vincent J. Brunkow, Federal Public
Defenders, San Diego, California, for the defendant/appellant.
William Allen Hall, Jr., Assistant United States Attorney, San
Diego, California; Bruce Searby, Assistant United States
Attorney, Los Angeles, California, for the plaintiff/appellee.
OPINION
TROTT, Circuit Judge:
Pedro Godinez-Ortiz, a defendant in a criminal case,
appeals from the district court order of July 18, 2008, which
returns him to the Federal Medical Facility in Butner, North
Carolina, for a period not to exceed 45 days so that he could
be evaluated for “dangerousness” and for a decision whether
to file a dangerousness certification. Godinez-Ortiz asserts the
district court lacked authority under both 18 U.S.C. § 4241 or
5016 UNITED STATES v. GODINEZ-ORTIZ
18 U.S.C. § 4246 to issue the order and that the order violated
his due process rights under the Fifth Amendment. In the
alternative, Godinez-Ortiz petitions for a writ of mandamus
seeking vacatur of the district court order. We AFFIRM the
district court order and DENY the petition for a writ of man-
damus.
BACKGROUND
On March 29, 2007, Pedro Godinez-Ortiz, a citizen of
Mexico, was arrested as he walked across the United States/
Mexico International Boundary. Godinez-Ortiz had been
removed to Mexico from the United States just fifteen days
earlier, after serving a prison sentence for a 1999 conviction
for manslaughter in California. On April 25, 2007, he was
indicted by a federal grand jury in the Southern District of
California on one charge of attempted reentry after deporta-
tion in violation of 8 U.S.C. § 1326(a) and (b). The next day,
Godinez-Ortiz moved for a competency examination pursuant
to 18 U.S.C. § 4241, which was thereafter conducted. On June
21, 2007, Magistrate Judge Louisa S. Porter found Godinez-
Ortiz incompetent to stand trial. Godinez-Ortiz was commit-
ted to the custody of the Attorney General pursuant to 18
U.S.C. § 4241(d) for hospitalization and treatment for a
period not to exceed four months, in order to determine
whether there was a substantial probability that in the foresee-
able future he would attain the capacity to permit the trial to
proceed.
On July 9, 2007, Godinez-Ortiz was admitted to the Federal
Medical Facility in Butner, North Carolina (FMC-Butner).
There, officials determined that, though he was not compe-
tent, he was not currently a danger to himself or others while
within the hospital environment, and therefore did not require
involuntary medication pursuant to Washington v. Harper,
494 U.S. 210, 227 (1990), to protect himself or others around
him in the facility. The officials went on to explain that
Godinez-Ortiz could potentially gain competency with the
UNITED STATES v. GODINEZ-ORTIZ 5017
treatment of antipsychotic medication, and requested permis-
sion from the district court to involuntarily medicate Godinez-
Ortiz for that purpose.
At a hearing held June 19-20, 2008, the district court con-
cluded that Godinez-Ortiz could not be involuntarily medi-
cated pursuant to Sell v. United States, 539 U.S. 166 (2003).
On July 18, 2008 the district court explained its ruling at the
June 19-20 hearing, which was that there was no substantial
probability that Godinez-Ortiz would obtain competence in
the foreseeable future.
The government then moved to dismiss the charges against
Godinez-Ortiz and further moved that he be returned to FMC-
Butner to provide the facility director with the opportunity to
reevaluate him and issue a dangerousness certificate pursuant
to 18 U.S.C. § 4246, if appropriate. The court correctly noted
that the dangerousness evaluation conducted pursuant to Har-
per was limited to whether Godinez-Ortiz was dangerous
while contained within the confines of FMC-Butner. The
court also correctly recognized that a dangerousness evalua-
tion conducted pursuant to § 4246 would determine whether
he might pose a danger to the public if released from the facil-
ity. The court granted the government’s motion, dismissing
the charges without prejudice, but staying its order of dis-
missal pending appeal and the determination regarding dan-
gerousness. Additionally, the court ordered that Godinez-
Ortiz be returned to FMC-Butner for a period of 45 days to
give the facility an opportunity to determine whether to file a
dangerousness certificate pursuant to § 4246. On July 25,
2008, Godinez-Ortiz filed a Notice of Appeal. The district
court has stayed its proceedings pending the determination of
Godinez-Ortiz’s appeal before this Court.
DISCUSSION
A. Jurisdiction
Godinez-Ortiz argues that this Court has jurisdiction to hear
his appeal pursuant to the collateral order doctrine. We review
5018 UNITED STATES v. GODINEZ-ORTIZ
de novo challenges to our jurisdiction over such interlocutory
appeals. See Bingue v. Prunchak, 512 F.3d 1169, 1172 (9th
Cir. 2008).
[1] As a general rule, we “have jurisdiction of appeals from
all final decisions of the district courts.” 28 U.S.C. § 1291. In
criminal cases, this rule ordinarily “prohibits appellate review
until conviction and imposition of [a] sentence.” Flanagan v.
United States, 465 U.S. 259, 263 (1984). However, a depar-
ture from the general rule may be warranted when waiting for
a final judgment “ ‘would practically defeat the right to any
review at all.’ ” Id. at 265 (quoting Cobbledick v. United
States, 309 U.S. 323, 324-25 (1940)). Under the collateral
order doctrine announced in Cohen v. Beneficial Industrial
Loan Corp., 337 U.S. 541 (1949), “a preliminary or interim
decision is appealable as a ‘collateral order’ when it (1) ‘con-
clusively determine[s] the disputed question,’ (2) ‘resolve[s]
an important issue completely separate from the merits of the
action,’ and (3) is ‘effectively unreviewable on appeal from
a final judgment.’ ” Sell, 539 U.S. at 176 (2003) (quoting
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).
Godinez-Ortiz argues these three criteria are satisfied,
whereas the government insists they are not.
First, we conclude that the order conclusively determines
the disputed question, whether the court may commit
Godinez-Ortiz so that he may be evaluated for dangerousness,
and the facility director may decide whether to submit a dan-
gerousness certification. See Sell, 539 U.S. at 176. Godinez-
Ortiz contends that the district court’s order conclusively
determines the disputed question, because, absent relief from
a higher court, he will be sent to FMC-Butner and subjected
to a § 4246 evaluation of his dangerousness. In contrast, the
government argues that there has been no conclusive determi-
nation of the disputed question because Godinez-Ortiz does
not appeal any commitment order pursuant to § 4241, and
proceedings to commit him pursuant to § 4246 are still pend-
ing.
UNITED STATES v. GODINEZ-ORTIZ 5019
[2] The district court order does conclusively determine the
disputed question. Under the district court order Godinez-
Ortiz will be held, transported to FMC-Butner, and subjected
to a dangerousness evaluation — the very result he is attempt-
ing to prevent with this appeal. See id.; see also United States
v. Friedman, 366 F.3d 975, 979 (9th Cir. 2004) (stating
“[t]here can be no doubt that the Commitment Order [under
§ 4241] conclusively determines [the defendant’s] present
right to be at liberty prior to trial”) (internal citation omitted).
Thus, the first requirement of the collateral order doctrine is
satisfied.
Second, we conclude that the district court order resolves
an important issue completely separate from the merits of the
action. See Sell, 539 U.S. at 176. Godinez-Ortiz points to his
original indictment for attempted reentry after deportation,
and asserts that whether or not he can be committed to FMC-
Butner for a dangerousness evaluation has no bearing on
whether he was found in the country illegally after being
deported. In contrast, the government identifies whether
Godinez-Ortiz should be committed under § 4246 as the
action in question, arguing the district court order is not com-
pletely separate from the merits of whether he should be com-
mitted under § 4246, and that, therefore, the second
requirement of the collateral order doctrine is not satisfied.
Godinez-Ortiz, and not the government, has correctly
applied the principles of the collateral order doctrine’s second
requirement. In resolving whether the second requirement of
the collateral order doctrine is satisfied, the Supreme Court
has held that the order must resolve an important issue com-
pletely separate from the merits of the original, underlying
action. In Sell, the Supreme Court reviewed an Eighth Circuit
decision that affirmed a district court order requiring the
defendant to be forcibly medicated to restore his competency.
539 U.S. 166. The Supreme Court determined the collateral
order doctrine’s second requirement was met because, “the
basic issue — whether [the defendant] must undergo medica-
5020 UNITED STATES v. GODINEZ-ORTIZ
tion against his will — is completely separate from the merits
of the action, i.e., whether [he] is guilty or innocent of the
crimes charged.” Id. at 176 (internal citation omitted).
[3] Likewise, in Friedman, this Court reviewed a district
court order committing the defendant to the custody of the
Attorney General for treatment in accordance with § 4241(d).
366 F.3d 975. In determining whether the collateral order
doctrine’s second requirement was met, we considered
whether the issue of involuntary commitment was “com-
pletely separate from the issue of whether [the defendant]
committed the crime with which he is charged.” Id. at 979. In
this case, because the district court order returning Godinez-
Ortiz to FMC-Butner resolves an important issue completely
separate from the charge of attempted illegal reentry, the col-
lateral order doctrine’s second requirement is satisfied.
Finally, we conclude that the district court order is effec-
tively unreviewable. See Sell, 539 U.S. at 176. Godinez-Ortiz
argues the order is effectively unreviewable because he can
never regain the time he will be forced to travel to and from
FMC-Butner or the time he will spend committed for further
evaluation. Additionally, he points out, if the dangerousness
evaluation is performed, it cannot be unperformed. In
response, the government argues the order is not unreview-
able because Godinez-Ortiz has not been committed under
§ 4246, and if he is, he may appeal.
[4] Although there is little case law discussing the reviewa-
bility of commitment under § 4246, Godinez-Ortiz draws
analogies between the instant case and cases involving juris-
diction over appeals from § 4241. This analogy is fitting. This
order is also analogous to appeals of detention orders and
motions to reduce bail. See 18 U.S.C. § 3145(c); see also
Flanagan, 465 U.S. at 266. Commitment under § 4241 and
detention orders under 18 U.S.C. § 3142, like commitment
under § 4246, strip from a defendant the right to be at liberty
prior to trial. Compare 18 U.S.C. § 4241 and 18 U.S.C.
UNITED STATES v. GODINEZ-ORTIZ 5021
§ 4246. The most significant difference between the two is the
length of time committed. Under § 4241(d)(1), the court is
permitted to commit a defendant for a “reasonable period of
time” not to exceed four months, and to an “additional reason-
able period” pursuant to § 4241(d)(2). Section 4247(b) states
that, for purposes of an examination ordered under § 4246, the
court may commit the person to be examined for a reasonable
period not exceeding 45 days and for an additional 30 days
upon a showing of good cause. Because the deprivation of lib-
erty is the same, drawing parallels among detention orders,
motions to reduce bail, § 4241 and § 4246 is appropriate.
In Friedman, this Court exercised collateral jurisdiction
over an appeal from a district court order temporarily commit-
ting the defendant under § 4241(d). 366 F.3d 975. We con-
cluded that a “[c]ommitment [o]rder is analogous to an order
denying bail and requiring pretrial detention, which the
Supreme Court has found to be effectively unreviewable upon
final judgment, and therefore immediately appealable as a
collateral order.” Id. at 979-80. We noted further that several
of our sister circuits have found that a commitment order
entered pursuant to § 4241 would be effectively unreviewable
on appeal from a final judgment. Id. at 979; see also United
States v. Ferro, 321 F.3d 756, 760 (8th Cir. 2003); United
States v. Filippi, 211 F.3d 649, 650-51 (1st Cir. 2000); United
States v. Gold, 790 F.2d 235, 239 (2d Cir. 1986) (holding
commitment order under § 4241(d) was appealable under the
collateral order doctrine in part because “nothing could
recover for the defendant the time lost during his confine-
ment”); United States v. Weissberger, 951 F.2d 392, 396
(D.C. Cir. 1991) (holding 30-day commitment order under
§ 4241(a) and § 4247(b) was appealable under the collateral
order doctrine because the loss of liberty would be “complete
and effectively unreviewable by the time of final judgment”).
To support its position that the collateral order doctrine
does not apply, the government points to United States v.
Ohnick, 803 F.2d 1485 (9th Cir. 1986). In Ohnick, the district
5022 UNITED STATES v. GODINEZ-ORTIZ
court for the Central District of California found, pursuant to
§ 4241, that the defendant was incompetent and that no sub-
stantial probability existed that he would obtain competence
in the foreseeable future. As a result, the defendant was sub-
ject to the provisions of § 4246. Id. at 1486. Yet, the district
court for the Central District of California refused to set a date
by which a dangerousness hearing under § 4246 was to be ini-
tiated. Id. We concluded that we did not have jurisdiction, and
explained the collateral order doctrine’s third requirement
would only be satisfied if the California district court’s ruling
somehow completely deprived the defendant of a dangerous-
ness hearing. Id. at 1487.
However, the facts in Ohnick are distinguishable. In
Ohnick, while the California district court refused to hold a
dangerousness hearing, the district court for the Western Dis-
trict of Missouri — where the defendant was being held —
had already set a date for a dangerousness hearing. Id. at
1486. Therefore, we reasoned that, if the Missouri court held
the dangerousness hearing, the outcome of that hearing would
be final for purposes of 28 U.S.C. § 1291, at which time the
defendant could challenge the Missouri court’s authority to
hold a hearing. Id. at 1487. If the Missouri court refused to
hold the dangerousness hearing, the defendant could bring a
petition for writ against the appropriate district court request-
ing that it be ordered to hold the statutorily required danger-
ousness hearing. Id.[5] In contrast, in the instant case, the district court has nei-
ther refused to schedule nor scheduled a dangerousness hear-
ing pursuant to § 4246, nor is a dangerousness hearing
pending in another court. Instead, the district court ordered
Godinez-Ortiz returned to FMC-Butner for a period not to
exceed 45 days, to give the facility director the opportunity to
file a dangerousness certificate pursuant to § 4246, if appro-
priate. Thus, here, there is no certainty that a dangerousness
hearing will be held. For example, if the director at FMC-
Butner does not issue a dangerousness certificate, a danger-
UNITED STATES v. GODINEZ-ORTIZ 5023
ousness hearing cannot be held and no opportunity for appeal
will arise, thus making the order effectively unreviewable.
[6] Furthermore, all charges against Godinez-Ortiz are to
be dropped for reasons related to his mental condition. While,
pursuant to § 4241(d)(2)(B), Godinez-Ortiz is now subject to
§ 4246, if the director at FMC-Butner does not find it neces-
sary to issue a dangerousness certificate in accordance with
§ 4246(a), Godinez-Ortiz may be subject to discharge pursu-
ant to § 4246(e), and the district court may order his discharge
without a hearing. In contrast to Ohnick, in the instant case
there are multiple scenarios under which the district court
order could be effectively unreviewable on appeal from a
final judgment, thus satisfying the collateral order doctrine’s
third requirement. See Ohnick 803 F.2d at 1487; see also
Friedman, 366 F.3d at 980 (distinguishing Ohnick where, if
defendant were not permitted to take an interlocutory appeal
from his involuntary commitment and temporary incarcera-
tion under § 4241(d), he may never be able to appeal the dis-
trict court’s determination that he was properly committed
and incarcerated).
Because each requirement of the collateral order doctrine is
satisfied, we have jurisdiction over this appeal.
B. The District Court’s Authority to Commit Godinez-
Ortiz
Godinez-Ortiz asserts that the district court lacked authority
to commit him to the custody of the Attorney General under
§ 4246, and to commence proceedings under § 4246. We
review de novo the district court’s interpretation of a statute.
United States v. Mack, 164 F.3d 467, 471 (9th Cir. 1999).
[7] Under § 4241(d) a district court is authorized to commit
a defendant who it deems is presently suffering from a mental
disease or defect rendering him incapable of “understand[ing]
the nature and consequences of the proceedings against him
5024 UNITED STATES v. GODINEZ-ORTIZ
or to assist properly in his defense.” Such commitment may
continue:
(1) for such a reasonable period of time, not to
exceed four months, as is necessary to determine
whether there is a substantial probability that in the
foreseeable future he will attain the capacity to per-
mit the proceedings to go forward; and
(2) for an additional reasonable period of time until
—
(A) his mental condition is so improved
that trial may proceed, if the court finds that
there is a substantial probability that within
such additional period of time he will attain
the capacity to permit the proceedings to go
forward; or
(B) the pending charges against him are
disposed of according to law;
whichever is earlier.
If, at the end of the time period specified, it is deter-
mined that the defendant’s mental condition has not
so improved as to permit proceedings to go forward,
the defendant is subject to the provisions of sections
4246 and 4248.
Here, the district court found that a substantial probability did
not exist that Godinez-Ortiz would obtain competence. Addi-
tionally, the pending charges against Godinez-Ortiz are to be
dismissed for reasons related to his mental condition. Thus,
by a plain reading of the statute, it is clear that Godinez-Ortiz
has been determined incompetent to stand trial, completing
proceedings under § 4241, and is now subject to the provi-
sions of § 4246.
UNITED STATES v. GODINEZ-ORTIZ 5025
[8] Section 4246(a) provides that:
If the director of a facility in which a person is hos-
pitalized certifies that a person in the custody of the
Bureau of Prisons whose sentence is about to expire,
or who has been committed to the custody of the
Attorney General pursuant to section 4241(d), or
against whom all criminal charges have been dis-
missed solely for reasons related to the mental condi-
tion of the person, is presently suffering from a
mental disease or defect as a result of which his
release would create a substantial risk of bodily
injury to another person or serious damage to prop-
erty of another, and that suitable arrangements for
State custody and care of the person are not avail-
able, he shall transmit the certificate to the clerk of
the court for the district in which the person is con-
fined. The clerk shall send a copy of the certificate
to the person, and to the attorney for the Govern-
ment, and, if the person was committed pursuant to
section 4241(d), to the clerk of the court that ordered
the commitment. The court shall order a hearing to
determine whether the person is presently suffering
from a mental disease or defect as a result of which
his release would create a substantial risk of bodily
injury to another person or serious damage to prop-
erty of another. A certificate filed under this subsec-
tion shall stay the release of the person pending
completion of procedures contained in this section.
Under § 4246(b), prior to the date of a dangerousness hearing
under § 4246(a), a district court “may order that a psychiatric
or psychological examination of the defendant be conducted.”
Section 4247(b) states that, for purposes of an examination
ordered under § 4246, the court may commit the person to be
examined for a reasonable period not exceeding 45 days and
for an additional 30 days upon a showing of good cause.
5026 UNITED STATES v. GODINEZ-ORTIZ
Godinez-Ortiz argues that the district court lacked authority
to commit him and commence proceedings because, by his
reading of § 4246(a), such evaluations and commitments are
allowed only when: (1) the FMC director files a certification
with the clerk of the court in the district where the individual
is confined; (2) the individual is hospitalized at the FMC at
the time; and (3) prior to filing the certificate with the district
court, the evaluation which leads to the certification has
already occurred. These criteria, he argues, have not been
met.
To support this position, Godinez-Ortiz points to case law
to show a district court’s authority under § 4241 is limited and
narrowly construed and to suggest that the district court in the
instant case lacked such authority. See Weber v. United States
Dist. Court for Cent. Dist. of Cal., 9 F.3d 76, 79 (9th Cir.
1993) (holding the district court was not authorized to order
that the defendant, who was hospitalized pursuant to § 4244,
be returned to the hospital for an evaluation under § 4246
after the director certified he had recovered from his mental
disease or defect to such an extent that he was no longer in
need of custody for care and treatment under § 4244(d));
United States v. Lapi, 458 F.3d 555, 562, 558 (7th Cir. 2006)
(holding the district court lacked authority to conduct a dan-
gerousness hearing under § 4246 when the state facility deter-
mined the defendant no longer required hospitalization and
had already released him); United States v. Baker, 807 F.2d
1315, 1325 (6th Cir. 1986) (holding, in part, that the district
court lacked authority to commit the defendant for an indefi-
nite period of time under § 4246 when it ruled from the bench
that his release would create a substantial risk of bodily injury
to another person, even though no dangerousness certificate
had been filed).
[9] However, these cases are easily distinguished from the
instant case. Because Godinez-Ortiz has been declared incom-
petent and the district court has not ordered a dangerousness
UNITED STATES v. GODINEZ-ORTIZ 5027
hearing or required the director to file a dangerousness certifi-
cate, such case law is neither binding nor persuasive.
The government, in response, first contends § 4246 does
not specifically state a dangerousness evaluation may only
follow the filing of a certificate. Furthermore, the government
asserts, § 4246 does not state that the director’s certificate
must be filed during the person’s commitment under § 4241
or before the § 4241(d) evaluation period ends.
[10] The government points to decisions affirming a defen-
dant’s hospitalization under § 4246, even though the district
court sent the defendant for evaluation of the defendant’s dan-
gerousness after finding he was unlikely to regain compe-
tence, but before a dangerousness certificate was filed. See
United States v. Ecker, 30 F.3d 966, 968 (8th Cir. 1994);
United States v. Sahhar, 917 F.2d 1197, 1199 (9th Cir. 1990).
In neither of these cases, however, did the defendant argue on
appeal that the district court lacked authority to order that
evaluation or contend the FMC director never should have
had an opportunity to file a dangerousness certificate to trig-
ger a § 4246(a) dangerousness hearing. Thus, the cases cited
by the government did not address the issue we now face.
Next, the government argues that Godinez-Ortiz’s assertion
that the district court lacked authority to commit him under
§ 4246 because he was not hospitalized at FMC-Butner at the
time is inaccurate. The government explains that, because the
Bureau of Prisons operates only five Federal Medical Centers,
defendants in 89 of the 94 judicial districts are often sent to
institutions outside of the district for hospitalization. Godinez-
Ortiz was only temporarily transported outside FMC-Butner
to be present at his June 19-20 hearing regarding involuntary
medication, held in the Southern District of California.
[11] We agree with the government. By a plain reading of
§ 4246, the director at FMC-Butner may determine whether to
issue a dangerousness certificate, and nowhere does § 4246
5028 UNITED STATES v. GODINEZ-ORTIZ
state that the director’s certificate must be filed during the
person’s commitment under § 4241 or before the § 4241(d)
evaluation period ends. Under the facts of this case, if the Dis-
trict Court had not ordered Godinez-Ortiz returned to the
facility at this juncture, no opportunity for such a determina-
tion would have existed. Moreover, the fact that he was tem-
porarily in California for the purpose of a hearing rather than
at FMC-Butner did not remove him from custody, and did not
mean he was no longer subject to § 4246.
[12] In authorizing the director to file a dangerousness cer-
tification, § 4246 necessarily contemplates the temporary
commitment of that person so that the director can conduct
the evaluation necessary to make the certification decision.
Section 4241 and § 4246 do place limits on the district court’s
authority to commit a person, but those limits were not
exceeded in this case. Here, the district court did not violate
either statute or relevant case law in issuing its order. A con-
trary ruling would thwart the director’s ability to consider
whether to issue a dangerousness certificate, despite ample
evidence that Godinez-Ortiz may pose a danger to others if
released. Therefore, we conclude the district court acted
within its authority in temporarily returning Godinez-Ortiz to
FMC-Butner to provide the director with an opportunity to
consider whether to issue a dangerousness certificate pursuant
to § 4246. The duration of such commitments is controlled by
18 U.S.C. § 4247(b).
C. Fifth Amendment
Godinez-Ortiz asserts that the district court’s order tempo-
rarily returning him to FMC-Butner pursuant to § 4246 vio-
lates the Fifth Amendment. We review the constitutionality of
a statute de novo. United States v. Harris, 185 F.3d 999, 1003
(9th Cir. 1999).
[13] Godinez-Ortiz argues that § 4241 has withstood
numerous due process challenges because it includes several
UNITED STATES v. GODINEZ-ORTIZ 5029
procedural protections. See 18 U.S.C. § 4247(d); Sahhar, 917
F.2d at 1204. Here, he argues, in ordering him returned to
FMC-Butner, the district court ignored these procedural pro-
tections, and thus violated the Fifth Amendment. For the same
reasons we conclude the district court acted within its author-
ity in issuing its order, we conclude Godinez-Ortiz’s Fifth
Amendment rights were not violated.
D. Mandamus
Godinez-Ortiz petitions for a writ of mandamus seeking
vacatur of the district court order. Whether a writ of manda-
mus is the proper remedy is reviewed de novo. Gill v. Villa-
gomez, 140 F.3d 833, 834 (9th Cir. 1998).
[14] Mandamus is an “extraordinary remedy” that should
be invoked only in “exceptional circumstances.” Will v.
United States, 389 U.S. 90, 95 (1967). It is the moving party’s
burden to establish “that its right to issuance of the writ is
clear and indisputable.” Bankers Life & Cas. Co. v. Holland,
346 U.S. 379, 384 (1953) (internal quotation marks omitted).
We consider five factors in assessing a mandamus petition:
(1) whether petitioner has no other adequate means, such as
direct appeal, to obtain the requested relief; (2) whether peti-
tioner will be damaged or prejudiced in any way not correct-
able on appeal; (3) whether the district court’s order is clearly
erroneous as a matter of law; (4) whether the district court’s
order is an oft-repeated error or manifests a persistent disre-
gard of the federal rules; and (5) whether the district court’s
order raises new and important problems or issues of first
impression. Bauman v. United States Dist. Court, 557 F.2d
650, 654-55 (9th Cir. 1977). “These guidelines are cumulative
and a proper disposition often requires a balancing of compet-
ing factors.” Weber 9 F.3d at 78.
First, Godinez-Ortiz has alternatively petitioned for a writ
of mandamus should this Court determine an interlocutory
appeal is improper. Because we have collateral jurisdiction to
5030 UNITED STATES v. GODINEZ-ORTIZ
hear this appeal, Godinez-Ortiz has other adequate means to
obtain his requested relief and the first Bauman factor cannot
be satisfied.
Second, Godinez-Ortiz argues that, between the incarcera-
tion, transportation, and evaluation, under the district court
order he will suffer irreparable injury that cannot be corrected
on appeal. We agree that Godinez-Ortiz’s injury cannot be
corrected on appeal. Thus, the second Bauman factor is satis-
fied.
Third, Godinez-Ortiz argues that the district court order
was clearly erroneous as a matter of law. We conclude the
district court order was not clearly erroneous, but was prop-
erly issued within the district court’s authority. Thus, the third
Bauman factor cannot be satisfied.
Fourth, Godinez-Ortiz concedes the fourth Bauman factor
is not satisfied.
Fifth, Godinez-Ortiz asserts that the district court order
raises an issue of first impression. In response, the govern-
ment points out that both parties have referenced United
States v. Rivera-Morales, 160 Fed. App’x 648 (9th Cir. 2005),
an unpublished Ninth Circuit case that is strikingly similar to
the instant case. However, because Rivera-Morales was
unpublished and issued prior to January 1, 2007, it cannot be
cited and would not be precedent even if it could be cited. See
9th Cir. Rule 36-3(c). Godinez-Ortiz is therefore correct that
this case is one of first impression, which satisfies the fifth
Bauman factor.
[15] While injury to Godinez-Ortiz will not be correctable
on appeal and he may present a case of first impression,
Godinez-Ortiz has access to an appeal and the district court’s
order is neither clearly erroneous as a matter of law nor an
oft-repeated error. Therefore, upon consideration of the five
UNITED STATES v. GODINEZ-ORTIZ 5031
factors set forth by this Court in Bauman, we conclude that a
writ of mandamus is not appropriate in this case.
CONCLUSION
This court has jurisdiction over this appeal pursuant to the
collateral order doctrine. In exercising our jurisdiction, we
conclude that the district court acted within its authority when
it committed Godinez-Ortiz to the custody of the Attorney
General under § 4246. The district court order was a proper
result of (1) its finding that there was no substantial likelihood
Godinez-Ortiz would obtain competence and (2) the pending
disposal of all charges for reasons related to his mental condi-
tion, pursuant to § 4241(d)(2).
In addition, we conclude that the district court order did not
violate Godinez-Ortiz’s Fifth Amendment rights, and that a
writ of mandamus is inappropriate in this case.
AFFIRMED.