In US v. Joshua, No. 10-6281, the court faced the issue of whether the government could civilly commit an individual who had been convicted and sentenced via military court-martial, then certified by the attorney general as "sexually dangerous" prior to his release.
The court below had found that the government could not do so under the statutory scheme at issue, and the circuit court upheld dismissal of the government's petition for civil commitment of respondent under 18 U.S.C. section 4248. Respondent, who had been convicted and sentenced via military court-martial, but housed within a Bureau of Prisons (BOP) facility, was nevertheless not "in the custody" of the BOP under section 4248 because the BOP did not have legal custody over him. Physical custody of respondent did not suffice for purposes of the statute.