USCA11 Case: 24-12018 Document: 33-1 Date Filed: 06/09/2025 Page: 1 of 4

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-12018 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARK WHEELER,

Defendant-Appellant.

____________________ Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 3:23-cr-00021-TES-CHW-1 ____________________ USCA11 Case: 24-12018 Document: 33-1 Date Filed: 06/09/2025 Page: 2 of 4

2 Opinion of the Court 24-12018

Before JORDAN, JILL PRYOR, and KIDD, Circuit Judges.

PER CURIAM: Mark Wheeler appeals the district court’s order of June 5, 2024, committing him to the custody of the Attorney General after finding him incompetent to stand trial. See 18 U.S.C. § 4241(d) (providing that, after commitment, the Attorney General is to “hospitalize the defendant for treatment in a suitable facility . . . for a reasonable period of time, not to exceed four months, as is nec- essary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward”). The district court stayed its commit- ment order until this appeal was resolved. See D.E. 65. 1 Mr. Wheeler argues that his competency cannot be restored because he has irreversible dementia, and that as a result the district court erred in committing him to the custody of the Attorney Gen- eral. He requests that we vacate the commitment order and re- mand with instructions that the district court commit him to the custody of the Attorney General “for no more time than is reason- ably necessary to determine whether there is a substantial proba- bility that he will gain competency in the foreseeable future to per- mit the proceedings to go forward.” Appellant’s Br. at 34.

The language of § 4241(d) is mandatory. If the district court finds that the defendant is incompetent, it “shall” commit the As a result of the stay, there are no mootness issues.

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24-12018 Opinion of the Court 3 defendant to the custody of the Attorney General. See United State v. Donofrio, 896 F.2d 1301, 1302-03 (11th Cir. 1990).

Although Mr. Wheeler contends that his dementia is irre- versible, we held in Donofrio that the permanency of the [defend- ant’s] condition” does not prevent commitment and is to be “de- termined . . . later . . . by the court.” Id. at 1303 (rejecting the de- fendant’s argument that if the mental condition is permanent com- mitment is permitted only on a finding of dangerousness). Other circuits have come to the same conclusion. See United States v. Strong, 489 F.3d 1055, 1062 (9th Cir. 2007); United States v. Ferro, 321 F.3d 756, 761-62 (8th Cir. 2003); United States v. Filippi, 211 F.3d 649, 650-51 (1st Cir. 2000); Royal v. United States, 274 F.2d 846, 849-51 (10th Cir. 1960). 2 The length of the commitment is to be determined by the Attorney General subject to reasonableness and necessity stand- ards and a four-month cap. See § 4241(d). We expect that, given the testimony presented in the district court that Mr. Wheeler’s de- mentia is permanent, the Attorney General will promptly

2 To the extent that Mr. Wheeler argues that the district court was required to place him in a particular treatment setting (i.e., a less restrictive setting), we reject the contention. We agree with the Ninth Circuit that “§ 4241(d) man- dates that district courts commit mentally incompetent defendants to the cus- tody of the Attorney General for treatment, without discretion for the court to order a particular treatment setting.” United States v. Quintero, 995 F.3d 1044, 1050 (9th Cir. 2021).

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4 Opinion of the Court 24-12018 determine whether there is a substantial probability that compe- tency can be restored in the foreseeable future.

AFFIRMED.