Filed: Dec. 10, 2013
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6326 UNITED STATES OF AMERICA, Petitioner - Appellee, v. RICHARD SAVAGE, Respondent - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Graham C. Mullen, Senior District Judge. (5:08-hc-02182-MU-JG) Argued: October 30, 2013 Decided: December 10, 2013 Before WILKINSON, AGEE, and KEENAN, Circuit Judges. Affirmed by published opinion. Judge Agee wrote the opinion, in
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6326 UNITED STATES OF AMERICA, Petitioner - Appellee, v. RICHARD SAVAGE, Respondent - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Graham C. Mullen, Senior District Judge. (5:08-hc-02182-MU-JG) Argued: October 30, 2013 Decided: December 10, 2013 Before WILKINSON, AGEE, and KEENAN, Circuit Judges. Affirmed by published opinion. Judge Agee wrote the opinion, in w..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6326
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
RICHARD SAVAGE,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Graham C. Mullen,
Senior District Judge. (5:08-hc-02182-MU-JG)
Argued: October 30, 2013 Decided: December 10, 2013
Before WILKINSON, AGEE, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Wilkinson and Judge Keenan concur.
ARGUED: Jeffrey William Gillette, GILLETTE LAW FIRM, PLLC,
Raleigh, North Carolina, for Appellant. Michael Bredenberg, FMC
BUTNER, FEDERAL MEDICAL CENTER, Butner, North Carolina, for
Appellee. ON BRIEF: Thomas G. Walker, United States Attorney,
R.A. Renfer, Jr., Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
AGEE, Circuit Judge:
Richard Savage appeals from the judgment of the United
States District Court for the Eastern District of North Carolina
civilly committing him as a “sexually dangerous person” under 18
U.S.C. § 4248. Savage contends that the district court lacked
jurisdiction under this statute because, as a District of
Columbia offender, he was not “in the custody of the Bureau of
Prisons” (“BOP”) as required by § 4248(a). He separately argues
that the district court erred in committing him because he
should have been released to the District of Columbia under
§ 4248(d). For the reasons set forth below, we affirm the
district court’s judgment.
I. Factual and Procedural Background
In 2006, Savage, who has a history of repeated sexual and
nonsexual offenses, pled guilty and was convicted of
distributing heroin in violation of the District of Columbia
Code (“D.C. Code”). Savage served his thirty-six-month sentence
for that offense in the BOP facility in Butner, North Carolina.
Before his scheduled release date for that offense, the
Government timely certified Savage as a “sexually dangerous
person” under § 4248(a) on December 18, 2008. The next day, the
district court stayed the civil commitment proceedings, noting
that had been the consistent practice in other § 4248
2
proceedings brought while appeals were pending in United States
v. Comstock, 507 F. Supp. 2d 522 (E.D.N.C. 2007), aff’d,
551
F.3d 274 (4th Cir. 2009), and rev’d and remanded,
560 U.S. 126
(2010), on remand, rev’d and remanded,
627 F.3d 513 (4th Cir.
2010).
Unaware of the pending civil commitment proceedings in
April 2010, the District of Columbia Court Services and Offender
Supervision Agency (“CSOSA”) inquired as to Savage’s anticipated
release into the District of Columbia upon the completion of his
criminal sentence. When CSOSA contacted the BOP regarding
Savage’s status, the BOP explained that Savage had been civilly
committed as a sexually dangerous person and therefore would not
be released. 1 After communicating with the BOP, CSOSA closed
Savage’s case.
Once the stay of proceedings related to Comstock was
lifted, Savage moved to dismiss the § 4248 proceedings against
him and sought immediate release. He argued that the district
court lacked jurisdiction over him because, as a District of
Columbia offender, he was not “in the custody” of the BOP for
purposes of § 4248. Citing our decision in United States v.
Joshua, 607 F.3d 379 (4th Cir. 2010), Savage argued that the
D.C. Code, like the Uniform Code of Military Justice (“UCMJ”) in
1
In fact, Savage had not yet been civilly committed but
rather was in the initial stages of that process.
3
Joshua, is a separate body of law from Title 18 of the U.S.
Code. Consequently, Savage posited that the BOP maintained only
physical custody over him, not the legal custody required by
§ 4248 to adjudicate a civil commitment. The district court
denied the motion, concluding that “[t]he statutory framework of
both the D.C. Code and the federal code endows the [BOP] with
the legal custody, not merely physical custody, over D.C. Code
offenders.” United States v. Savage, No. 5:08-HC-2182-FL, 2011
U.S. Dist. LEXIS 112959, at *4 (E.D.N.C. Sept. 30, 2011).
At the subsequent commitment hearing, the Government
presented evidence detailing Savage’s history of sexual
offenses. The district court concluded that Savage satisfied the
§ 4248 criteria and ordered him to be civilly committed as a
sexually dangerous person. 2 Savage noted a timely appeal, and we
have jurisdiction pursuant 28 U.S.C. § 1291.
II. Analysis
The Adam Walsh Child Protection and Safety Act, codified at
18 U.S.C. § 4248, authorizes the civil commitment of “sexually
dangerous person[s].” In pertinent part, § 4248 provides that
“[i]n relation to a person who is in the custody of the Bureau
2
Savage does not challenge the district court’s findings
that he satisfied the non-jurisdictional criteria for commitment
under § 4248.
4
of Prisons, . . . the Attorney General . . . may certify that
the person is a sexually dangerous person. . . . The court shall
order a hearing to determine whether the person is a sexually
dangerous person.” 18 U.S.C. § 4248(a) (emphasis added). 3 The
statute further provides that
[i]f, after the hearing, the court finds by clear and
convincing evidence that the person is a sexually
dangerous person, the court shall commit the person to
the custody of the Attorney General. The Attorney
General shall release the person to the appropriate
official of the State in which the person is domiciled
or was tried if such State will assume responsibility
for his custody, care, and treatment.
Id. § 4248(d) (emphasis added).
In this appeal, Savage raises two issues. First, he argues
that the district court erred in concluding that, for purposes
of § 4248(a), Savage was “in the custody of” the BOP. Second,
Savage contends that the district court erred in committing him
because § 4248(d) instead required him to be released to the
District of Columbia. Both issues are questions of statutory
interpretation—“quintessential question[s] of law, which we
3
Section 4248(a) also authorizes the Attorney General
to certify as a “sexually dangerous person” anyone “who has been
committed to the custody of the Attorney General pursuant to
section 4241(d), or against whom all criminal charges have been
dismissed solely for reasons relating to the mental condition of
the person.” 18 U.S.C. § 4248(a). The BOP does not argue that
Savage falls into either of these categories. We agree those
provisions do not apply in this case and consider only whether
Savage was “in the custody of the Bureau of Prisons.”
5
review de novo.” Stephens ex rel. R.E. v. Astrue, 565 F.3d 131,
137 (4th Cir. 2009).
A.
We consider first Savage’s argument that the court lacked
the jurisdiction under § 4248 to civilly commit him because he
was not “in the custody of the [BOP].” In essence, Savage
contends that, as a District of Columbia offender, he was not
“in the custody” of the BOP for purposes of § 4248 even though
he was serving his term of confinement in the BOP.
Savage proposes three basic reasons to support this
conclusion. First, he argues that, having been convicted under
the D.C. Code, he is not subject to § 4248 because that statute
applies only to individuals in the federal criminal process.
Second, Savage contends that the Attorney General and the BOP
are not the same authority for purposes of determining
“custody,” and that the D.C. Code transfers convicted offenders
into the custody of the Attorney General following their
sentencing. Third, and finally, he argues that any control that
the BOP exercises over D.C. prisoners is not “custody” as
contemplated by § 4248. For these reasons, Savage posits that
his case is “virtually indistinguishable” from Joshua and he,
too, should not be subject to commitment under § 4248 because
the district court lacked the jurisdiction to do so.
6
Before addressing these arguments, we first summarize our
holding in Joshua, where we also addressed the meaning of
“custody” in the context of § 4248. In that case, an ex-Army
officer had been convicted by courts-martial of violations of
the UCMJ and was serving his term of imprisonment in a BOP
facility under a “Memorandum of Agreement” entered into under
the statutory authority of UCMJ Article 58. Joshua, 607 F.3d at
381–82. The Memorandum of Agreement stated that the BOP would
house up to 500 U.S. Army prisoners, who were deemed
“contractual boarders.”
Id. at 381. By its terms, the Memorandum
of Agreement provided that “military prisoners within BOP
facilities [would] remain ‘in permanent custody of the U.S.
Army,’ which ‘retain[ed] clemency authority.’”
Id. at 382
(quoting the Memorandum Agreement). This contractual custody was
statutorily authorized only as to a prisoner’s “confinement,”
not his legal status for § 4248 purposes: “UCMJ Article 58’s
language authorizing Joshua’s ‘confinement’ within a BOP
facility never transferred legal custody away from the Army.”
Id. at 389.
We determined in Joshua that the term “custody” in
§ 4248(a) means not simply physical custody, but legal custody—
the “ultimate legal authority” over the offender. Id. at 388.
And we held that the provisions of the UCMJ, reflected in the
terms of the Memorandum of Agreement, established that the BOP
7
did not have legal, but only physical, custody over Joshua. The
ultimate legal authority over him always remained with the Army
regardless of Joshua’s place of physical residence. Id. at 388-
90. Because the BOP lacked legal custody over Joshua, there was
no jurisdictional authority for civil commitment under § 4248,
and we affirmed the district court’s dismissal of the
Government’s § 4248 petition.
Id. at 391.
We find the case at bar distinguishable from Joshua. Unlike
Joshua, this case involves the civilian District of Columbia
criminal justice system, not the military system. More to the
point, District of Columbia offenders, unlike military
offenders, are placed in the BOP’s custody by statutory
authority, not as a matter of convenience. Section 24-201.26 of
the D.C. Code provides that “[a]ll prisoners convicted in the
District of Columbia for any offense . . . shall be committed
. . . to the custody of the Attorney General of the United
States or his authorized representative, who shall designate the
places of confinements where the sentences of all such persons
shall be served.” D.C. Code § 24-201.26 (emphasis added). The
D.C. Code refers to “custody” as opposed to mere “confinement,”
the operative statutory language at issue in Joshua. See Joshua,
607 F.3d at 389 (“By contrast, Article 58’s provision
authorizing a military offender’s confinement within the BOP
looks much different: ‘a sentence of confinement adjudged by a
8
court-marital or other military tribunal . . . may be carried
into execution by confinement in . . . any penal or correctional
institution under the control of the United States . . . .’”
(quoting 10 U.S.C. §858(a))). While “confinement” suggests mere
physical custody, “committed to the custody,” by comparison,
reflects a specific status beyond the place of residence.
Similarly, while D.C. Code § 24-201.26 expressly transfers
“custody,” the Memorandum of Agreement in Joshua expressly
provided that the U.S. Army retained “custody” of him.
In determining what type of “custody” D.C. Code § 24-201.26
intends, we find Frazier v. United States, 339 F.2d 745 (D.C.
Cir. 1964), persuasive. 4 In Frazier, the United States Court of
Appeals for the District of Columbia Circuit determined from the
identical language in the predecessor statute of Section 24-
201.26 that “it is clear that the ‘custody’ intended is not
limited to actual physical custody, but denotes a type of legal
custody which remains in the Attorney General even though the
prisoner is assigned to an institution over which the Department
4
We further note that because Frazier pre-dates the
creation of the District of Columbia Court of Appeals, it would
ordinarily be afforded the deference due a “state” court
interpreting a “state” statute. See Ortberg v. Goldman Sachs
Group, 64 A.3d 158, 170 n.2 (D.C. 2013) (“Decisions of the
United States Court of Appeals for the District of Columbia
Circuit issued before February 1, 1971, are binding on this
court.”). As noted, however, Frazier examined the predecessor
statute of § 24-201.26, though that language was the same. As
such, its interpretation is highly persuasive.
9
of Justice has no control.” Id. at 746. The appellant, Frazier,
had argued that he was not subject to the Federal Escape Act, 18
U.S.C. § 751, because he had been transferred to a mental
facility prior to his escape, and the Attorney General’s custody
had ended upon that transfer.
Frazier, 339 F.2d at 746–47. The
court, however, concluded that “the custody of the Attorney
General is continuous as he discharges his responsibility to
transfer a prisoner ‘from one institution to another . . . for
the well-being of the prisoner.’”
Id. at 747 (citation omitted).
Congress’ enactment of the National Capital Revitalization
and Self Government Improvement Act of 1997, 111 Stat. 251; Pub.
L. 105-33, (the “Revitalization Act”) confirms to us that D.C.
Code § 24-201.26 places D.C. offenders into the legal custody of
the Attorney General for the duration of his sentence, no matter
where the prisoner may be housed. The Revitalization Act
effectively closed the District of Columbia Department of
Corrections and “transferred [all D.C. felons] to a penal or
correctional facility operated or contracted for by the Bureau
of Prisons.” D.C. Code § 24-101(b). Not only did the
Revitalization Act place D.C. offenders in the physical custody
of the BOP, but by further “subject[ing] [D.C. offenders] to any
law or regulation applicable to persons committed for violations
of laws of the United States consistent with the sentence
imposed, and [by designating] the Bureau of Prisons . . .
10
responsible for the custody, care, subsistence, education,
treatment and training of such persons,” the Act also vested
legal custody in the BOP. Id. (emphasis added); see also, e.g.,
Chase v. Pub. Defender Serv.,
956 A.2d 67, 72 & n.7 (D.C. 2008)
(explaining that “[w]hen it enacted the Revitalization Act in
1997, Congress shifted control over several criminal justice
functions from the District of Columbia to the federal
government,” including the “transfer[] [of] sentenced felons to
the custody of the federal Bureau of Prisons”). The
Revitalization Act was, by its plain terms, not a contractual
provision for confinement, but the full vesting of all aspects
of custody in the BOP over D.C. offenders.
Contrary to Savage’s contention, we conclude that for
purposes of § 4248, there is no substantive difference between
vesting legal custody in the Attorney General and legal custody
in the BOP. D.C. Code § 24-201.26 transfers custody to “the
Attorney General of the United States or his authorized
representative, who shall designate the places of confinements
where the sentences of all such persons shall be served.” D.C.
Code § 24-201.26 (emphasis added). Moreover, Congress has
provided that “[t]he Bureau of Prisons shall be in [the] charge
of a director appointed by and serving directly under the
Attorney General.” 18 U.S.C. § 4041 (emphasis added); see also
id. § 4042 (stating that “[t]he Bureau of Prisons, under the
11
direction of the Attorney General, shall” perform its duties).
Under these clearly delineated relationships, the BOP operates
at the Attorney General’s direction, and serves as that
officer’s designee. The Attorney General and the BOP are thus
equivalent entities for purposes of a § 4248 “custody” analysis.
Since the passage of the Revitalization Act, the BOP
calculates D.C. offenders’ sentences and determines their
release dates. Savage himself acknowledges that this calculation
is “[t]he most obvious expression of ultimate legal authority
over a prisoner.” (Opening Br. 21.) And while the BOP sentencing
manual for D.C. offenders is separate from that for federal
offenders, the BOP compiled the D.C. offender’s manual in light
of the Revitalization Act’s instructions in order to fulfill
this component of its exercise of full custody over D.C.
offenders. See generally Federal Bureau of Prisons, 5880.32
Change Notice 1 (2003),
http://www.bop.gov/policy/progstat/5880_032_CN01.pdf. The BOP,
by creating and implementing the manual, is significantly more
active in the process than Savage portrays it to be. Because the
BOP is responsible under the Revitalization Act for the
calculation of sentences and the “custody, care, subsistence,
education, treatment and training of” D.C. offenders, it is
12
clear that the BOP, as the Attorney General’s representative,
exercises “ultimate legal authority” over D.C. offenders. 5
For all the foregoing reasons, we hold that D.C. offenders
are in the legal custody of the BOP for purposes of § 4248. As
such, we conclude that the district court did not err in
determining that it had the jurisdictional authority to civilly
commit Savage as a “sexually dangerous person” under § 4248(a)
because he was in the legal custody of the BOP.
B.
Savage also argues that the district court erred in his
civil commitment because § 4248(d) instead required his release
“to the appropriate State . . . if that State will assume
responsibility for his custody, care, and treatment.” 18 U.S.C.
§ 4248(d). Specifically, he contends that, as the District of
Columbia had expressed a willingness when CSOSA contacted the
BOP to coordinate his release plan, § 4248(d) required that he
5
Similarly, D.C. offenders are also not in the same
category as the detainee of the U.S. Immigration and Customs
Enforcement (“ICE”) in United States v. Hernandez-Arenado, 571
F.3d 662 (7th Cir. 2009), who was housed in a BOP facility and
whose custodial status for purposes of § 4248 was at issue.
ICE, as part of the Department of Homeland Security, housed
Hernandez-Arenado in a BOP facility for its convenience, but
“retain[ed] ultimate authority over him.”
Id. at 667. Thus, as
in Joshua, there was no statutory transfer of legal custody of
Hernandez-Arenado from ICE to the BOP.
13
be released to the District of Columbia. (Opening Br. 23–26.)
Savage, however, never made this argument in the district court.
“[I]ssues raised for the first time on appeal are generally
not considered absent exceptional circumstances.” Williams v.
Prof’l Transp. Inc., 294 F.3d 607, 614 (4th Cir. 2002). The
underlying rationales for this rule are “respect for the lower
court, [avoiding] unfair surprise to the other party, and the
need for finality in litigation and conservation of judicial
resources.” Wheatley v. Wicomico Cnty.,
390 F.3d 328, 335 (4th
Cir. 2004). Savage contends that he preserved this argument for
appeal on two occasions. We disagree.
First, Savage points to a section of his Memorandum in
Support of his Motion to Dismiss and Release, in which he argues
that “[a]pplication of 18 U.S.C. § 4248 to Respondent Savage
merely because of his physical presence in a BOP facility is
inconsistent and interferes with the District of Columbia’s
ability to manage his reentry or ongoing confinement pursuant to
the D.C. Code.” (J.A. 41.) This statement, however, is not an
argument based on any statutory release mandate under § 4248(d).
Savage never referred to subsection (d) in this part of his
memorandum but asserted only a vague equitable argument that the
District of Columbia was better able to manage his reentry. This
contention is not an argument that the statute prohibited his
14
commitment under § 4248(d) as a matter of law, as he now
contends on appeal.
Second, Savage points to his closing argument during the
commitment hearing. (J.A. 297–303.) While Savage did reference
subsection (d) once, he again made only an equitable argument
that it was more appropriate for the District of Columbia to
treat him. He never argued that the court lacked the authority
to commit him under § 4248(d) because of a statutory requirement
that he be instead released to the District of Columbia. (Id. at
297.) This is a different argument from the one that Savage
presents on appeal: that he should not have been committed under
§ 4248 because subsection (d) required his release to the
District of Columbia under the express terms of the statute.
Savage has not argued that exceptional circumstances exist
that would compel us to consider an argument raised for the
first time in this appeal, and we find none. Therefore, we
conclude that Savage has waived his second argument by failing
to raise it in the district court. 6
6
Even if Savage had not waived this argument, and even
assuming arguendo that he could prove CSOSA’s willingness to
assume responsibility for his care, Savage’s argument would
still fail. Savage bases his argument on a misreading of
§ 4248(d), which provides that
[i]f, after the hearing, the court finds by clear
and convincing evidence that the person is a sexually
dangerous person, the court shall commit the person to
(Continued)
15
III. Conclusion
For the reasons stated above, we conclude that Savage, as a
D.C. offender, was “in the custody of” the BOP for purposes of
§ 4248 certification as a “sexually dangerous person.” We
further conclude that Savage waived the argument that § 4248(d)
required his release to the District of Columbia. We therefore
affirm the district court’s judgment.
AFFIRMED
the custody of the Attorney General. The Attorney
General shall release the person to the appropriate
official of the State in which the person is domiciled
or was tried if such State will assume responsibility
for his custody, care, and treatment.
18 U.S.C. § 4248(d) (emphasis added). We do not address whether
CSOSA “will assume responsibility for [Savage’s] custody, care,
and treatment.” But even by the plain language of the statute,
the § 4248(d) provision for release to state officials applies
only after the district court has found at a § 4248 hearing that
the individual is a “sexually dangerous person.” Therefore,
§ 4248(d) applies only after the § 4248 hearing and commitment
determination. Savage remains free to seek that course as it
relates to his future commitment, but § 4248(d) did not operate
to bar the § 4248 commitment process.
16
