United States v. Thomas Jensen

Filing

OPINION FILED - THE COURT: JAMES B. LOKEN, MICHAEL J. MELLOY and BOBBY E. SHEPHERD. Michael J. Melloy, Authoring Judge (PUBLISHED) [3786120] [10-2388]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-2388
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United States of America,

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Plaintiff-Appellee,
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Appeal from the United States
v.
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District Court for the
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District of South Dakota.
Thomas Jensen,
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Defendant-Appellant.
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Submitted: February 15, 2011
Filed: May 11, 2011
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Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
Thomas Jensen pleaded guilty to one count of mailing a threatening
communication in violation of 18 U.S.C. § 876(c). As part of a plea agreement, the
government and Jensen moved for a hearing pursuant to 18 U.S.C. § 4244(a) to
determine if Jensen suffered from a mental disease or defect and should be
provisionally sentenced to a suitable treatment facility in lieu of incarceration. See 18
U.S.C. § 4244(d). The district court denied the motion, interpreting § 4244 as
involving issues of competency. The district court also denied a motion to reconsider
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On appeal, Jensen argues the district court's application of 18 U.S.C. § 4241
competency standards comprised error. The government joins Jensen's argument
urging remand for a § 4244(a) hearing, and the issue is fully preserved for our review.
Because § 4244 involves mental-health issues separate from questions of competency
and because § 4244 serves purposes independent from the competency provisions of
§ 4241, we agree with the parties, reverse the judgment of the district court, and
remand for further proceedings. Given our disposition of this issue, we do not address
other sentencing-related issues Jensen raises on appeal.
I.
While on supervised release following a term of incarceration for assaulting a
federal officer, Jensen sent threatening communications to his former attorney. His
supervised release was revoked, and he completed an additional term of incarceration.
While incarcerated and following his release, he sent additional threatening
communications to his former attorney and former probation officer. The
communications not only included threats towards these victims, but reflected efforts
to discover information about the victims' families and suggested Jensen was not a
stable person.
After the government brought the current charges against Jensen, defense and
government mental-health professionals examined Jensen and proffered reports
concerning his mental status at the time of the offense, his competency for standing
trial or entering a plea, and his general mental-health diagnoses. His diagnoses were
mixed, with some professionals diagnosing him as suffering from multiple identifiable
conditions, including schizophrenia, and others diagnosing him as suffering from
other illnesses that could not be determined. All of the mental-health professionals
(a psychiatrist, a neuropsychologist, and a psychologist), however, concluded he
suffered from multiple and layered impairments caused by a range of factors including

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a genetic predisposition towards mental illness, severe closed-head trauma, learning
disabilities, and permanent effects from long-term substance abuse.
The government's own expert stated unequivocally that the Bureau of Prisons
would not adequately address Jensen's mental-health needs. The government expert
recommended Jensen be placed specifically in the "Level IV" federal mental-health
treatment facility in Springfield, Missouri. All of the experts agreed that Jensen
suffered from a mental illness and required treatment rather than incarceration. The
Assistant United States Attorney and defense counsel agreed.
Initially, Jensen's mental health was the focus of a motion to suppress certain
evidence and statements. Jensen alleged specifically that he had not knowingly and
voluntarily waived his Miranda1 rights and had been unable to comply peacefully with
a search warrant. Shortly before trial, a magistrate judge rejected the motions to
suppress. Jensen and the government entered into the plea agreement eleven days
later, and Jensen did not object to the magistrate judge's ruling. In the agreement, the
government stated that it would request a § 4244(a) hearing regarding the need for
treatment in lieu of incarceration.
After Jensen entered his plea, the parties moved for a mental-illness evidentiary
hearing pursuant to 18 U.S.C. § 4244(a), which provides:
§ 4244. Hospitalization of a convicted person suffering from mental
disease or defect

(a) Motion to determine present mental condition of convicted
defendant.--A defendant found guilty of an offense, or the attorney for
the Government, may, within ten days after the defendant is found guilty,
and prior to the time the defendant is sentenced, file a motion for a
1

Miranda v. Arizona, 384 U.S. 436 (1966).
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hearing on the present mental condition of the defendant if the motion is
supported by substantial information indicating that the defendant may
presently be suffering from a mental disease or defect for the treatment
of which he is in need of custody for care or treatment in a suitable
facility. The court shall grant the motion, or at any time prior to the
sentencing of the defendant shall order such a hearing on its own motion,
if it is of the opinion that there is reasonable cause to believe that the
defendant may presently be suffering from a mental disease or defect for
the treatment of which he is in need of custody for care or treatment in
a suitable facility.
(Emphasis added).
The materials provided to the district court with the joint motion for the
§ 4244(a) hearing, including the experts' reports, contained "substantial information
indicating that the defendant may presently be suffering from a mental disease or
defect for the treatment of which he is in need of custody for care or treatment in a
suitable facility." Id. We believe the record strongly suggests there was "reasonable
cause to believe that the defendant may presently be suffering from a mental disease
or defect for the treatment of which he is in need of custody for care or treatment in
a suitable facility." Id. Further, the district court expressly noted that Jensen suffered
mental "impairments." As such, the statute on its face required the court to order a
hearing in this situation. Id. (stating that upon a showing of reasonable cause, "[t]he
court shall grant the motion") (emphasis added).
The district court denied the motion for a § 4244(a) hearing, referring to the
mental health question at issue as one of competency and referring to the requested
hearing as a competency hearing. The parties correctly argued that § 4244 does not
involve questions of competency. Ultimately, in its written order, the court cited
§ 4244 and stated that it did not believe treatment in lieu of incarceration was justified.
In making this ruling, however, the court again characterized the mental-health issue
as competency. Notwithstanding the court's reference to § 4244, we are left with the
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firm conviction that characterization of the mental health issue as one of competency
resulted in error. We write further because we believe the history of §§ 4241 and
4244 contributed to this error.
Prior to the Insanity Defense Reform Act of 1984, Pub. L. 98-473, 98 Stat. 2057
(1984), the United States Code, in fact, contained competency provisions at 18 U.S.C.
§ 4244. The 1984 legislation, however, reworked and rearranged several provisions
addressing various mental-health issues at different stages of prosecution or
incarceration. In particular, competency provisions are now found in § 4241 whereas
§ 4244 addresses the altogether different situation where a party, competent to enter
a plea or stand trial, nevertheless may be in need of mental-health treatment that
would make commitment to a mental-health facility more appropriate than
incarceration. The current statutory regime establishes separate standards for these
distinct situations and requires a greater and more specific showing to establish a lack
of competency pursuant to § 4241 than to trigger the procedures and provisional
sentencing option of § 4244. See United States v. Abou-Kassem, 78 F.3d 161, 165
(5th Cir. 1996) ("The standard under section 4241 asks more and is significantly more
onerous than the relevant test under section 4244.").2 Accordingly, it is consistent
with the statutory regime to seek a hearing in good faith pursuant to § 4244(a) even
2

See also United States v. Roberts, 915 F.2d 889, 891–92 (4th Cir. 1990),
providing:
Those defendants subject to §§ 4244, 4245 and 4241 (which refers to
persons incompetent to stand trial) are not similarly situated. Section
4241 applies to defendants found to be mentally incompetent to stand
trial. Section 4244 applies to competent persons found to be suffering
from a mental disease prior to sentencing, and section 4245 applies to
competent persons found to be mentally ill, while serving their
sentences. Clearly those statutes apply to different types of mentally ill
patients who cannot be lumped together into a group consisting of people
with mental problems facing federal prosecution.
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though the separate question of competency pursuant to § 4241 may not have
presented a close issue in a particular case.
If a court grants a hearing pursuant to the current § 4244(a), and if the court
finds by a preponderance of the evidence at the hearing that the defendant is suffering
from "a mental disease or defect and that he should, in lieu of being sentenced to
imprisonment, be committed to a suitable facility," the court is to impose a
"provisional sentence . . . to the maximum term authorized by law for the offense for
which the defendant was found guilty." § 4244(d). If, at a later date, the director of
a facility to which a defendant is provisionally sentenced certifies that the defendant
no longer suffers from the mental disease or defect, then the defendant may proceed
to final sentencing. § 4244(e). Through this framework, the current version of § 4244
helps to meet several governmental interests that are distinct from questions of
competency, namely, "the governmental interests in: (1) protecting mentally ill
prisoners who might be at substantial risk if placed in the general prison population;
(2) ensuring the safety of other inmates; and (3) providing humanitarian treatment for
mentally ill inmates." Abou-Kassem, 78 F.3d at 165.
Here, the parties properly presented the non-competency issues of mental
disease or defect and the potential need for a provisional sentence. The record
suggests the presence of mental diseases or defects from multiple causes or
aggravators, including traumatic brain injury. As required by § 4244(a), we believe
there is "reasonable cause to believe" Jensen may be in need of care or treatment.
Accordingly, a hearing is required to assess the propriety of a provisional sentence.
We remand for a § 4244(a) hearing and emphasize that the hearing is to determine the
need for a provisional sentence and not to determine whether the defendant presently
is competent or was competent at the time of his plea.3
3

Pending is a motion by Jensen to supplement oral argument to clarify
comments regarding the need for a hearing given the current record. Our review of
the law and the current record show that a hearing is required. We do not believe,
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In doing so, we vacate Jensen's current sentence. If the court on remand
determines it is appropriate to impose a provisional sentence, any traditional criminal
sentencing will occur if, and only if, Jensen is deemed to have recovered from his
mental diseases or defects while there remains time not served within the statutory
maximum term of punishment. To the extent the court on remand determines a
provisional sentence is not appropriate, Jensen will need to be resentenced because
evidence bearing on his mental disease or defect is material to several issues that must
be addressed at sentencing. In particular, we note that the issue of acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1 and the characteristics of the defendant
and other factors pursuant to 18 U.S.C. § 3553(a) may turn, to a large degree, on
evidence contained in the reports of the mental-health professionals.4
For the foregoing reasons, we reverse the sentence and remand for further
proceedings consistent with this opinion.
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however, that the present record is sufficient to permit final determination of the need
for treatment in lieu of or prior to incarceration. It is for the district court, in the first
instance, to hear the evidence at the § 4244(a) hearing and determine, apart from any
questions of competency, the need for treatment in lieu of or prior to incarceration.
Given our resolution of this matter, we deny the pending motion as moot.
4

Regarding acceptance of responsibility, we note it is undisputed that Jensen
suffers from multiple mental-health impairments, he admitted his crimes shortly after
being indicted, and, by our review, he asserted no frivolous positions throughout the
protracted history of this matter. It also appears that determinations made in the
process of arriving at the original sentence in this case may have been influenced at
least in part by the view that Jensen's mental-health arguments involved meritless
claims regarding competency.
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