Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.united States of America, Plaintiff-appellee, v. Tyrone Simmons, Defendant-appellant, 81 F.3d 152 (4th Cir. 1996)

Tyrone Simmons seeks review of the district court's order finding that he suffers from a mental disease or defect requiring custody of care or treatment in a suitable facility pursuant to 18 U.S.C. § 4245 (1988). Simmons does not challenge the court's finding that he suffers from a mental disease, and the record is uncontradicted on the point that he suffers from paranoid schizophrenia. He contends, however, that the court erred by finding that his disease was so debilitating that it warranted transferring him to a psychiatric hospital against his will. He argues that the primary purpose of such institutionalization will be to forcibly subject him to psychotropic medication, and avers that such treatment is unnecessary, relying on the testimony of Dr. Owens, Simmons's treating psychiatrist, that it is possible to maintain him in the general population without such medication.

To justify Simmons's involuntary commitment, the Government had to prove, by a preponderance of the evidence, that he suffers from a mental disease or defect which requires custody of care or treatment in a suitable facility. See United States v. Baker, 45 F.3d 837, 840 (4th Cir. 1995). As with the issue of whether Simmons suffers from a mental disease, the medical evidence of record is uncontradicted as to whether Simmons's disease requires custody and treatment in a psychiatric facility. Both Dr. Owens, and Dr. Royal, a court appointed psychiatrist, agreed that Simmons needs such treatment. We therefore find that the district court's determination that the Government carried its burden on this point was not clearly erroneous. See United States v. Steil, 916 F.2d 485, 487 (8th Cir. 1990) (citing standard of review).

As for the possibility that Simmons will involuntarily receive psychotropic medication during his commitment, we note that the record does not disclose that this decision has yet been made. Moreover, the issue was not passed on below, and is improperly raised for the first time on appeal. See Singleton v. Wulff, 428 U.S. 106, 120 (1976). We therefore decline to consider this issue.

Accordingly, the order of the district court is affirmed. 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