UNITED STATES of America, Plaintiff-Appellee, v. James CARBULLIDO, Defendant-Appellant

251 F.3d 833, 2001 Cal. Daily Op. Serv. 4454, 2001 Daily Journal DAR 5515, 2001 U.S. App. LEXIS 11370, 2001 WL 585547

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 1, 2001
• Docket: 00-10416
• Status: Unpublished

Opinion

PER CURIAM:

In a case of first impression in this Circuit, James Carbullido (“Carbullido”) appeals the district court’s order conditionally releasing him from custody pursuant to 18 U.S.C. § 4243(f). Carbullido argues that the governing statute — 18 U.S.C. § 4243(e) — only permits his commitment or unconditional release. He is correct. Conditional release is only appropriate under 18 U.S.C. § 4243(f) after a person has been committed pursuant to 18 U.S.C. § 4243(c)(e). Carbullido was not thus committed. Consequently, he could not be conditionally released under 18 U.S.C. § 4243(f). See United States v. Baker, 155 F.3d 392, 395 (4th Cir.1998) (“discharge from commitment cannot precede the commitment itself.”).

The district court’s error does not compel Carbullido’s unconditional discharge. The district court’s order finding that Carbullido did not pose a present danger to society was linked to the conditions it imposed for release. Implied in the district court’s reasoning is the conclusion that Carbullido failed to establish that his unconditional release “would not create a substantial risk of bodily injury to another person or serious damage of property to another due to a mental disease or defect. ...” 18 U.S.C. § 4243(e) (1988).

VACATED and REMANDED for further proceedings consistent with this decision.