United States v. Michael Sanderson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6274
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL SANDERSON,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:11-cr-00331-GRA-1)
Argued: January 30, 2013 Decided: May 29, 2013
Before DAVIS, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the majority
opinion, in which Judge Thacker joined. Judge Davis wrote a
dissenting opinion.
ARGUED: Benjamin Thomas Stepp, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenville, South Carolina, for Appellant. Jeffrey
Mikell Johnson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee. ON BRIEF: Kimberly H. Albro,
Research and Writing Specialist, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. William N.
Nettles, United States Attorney, Robert F. Daley, Jr., Maxwell
B. Cauthen, III, Assistant United States Attorneys, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DIAZ, Circuit Judge:
Michael Sanderson was indicted for failing to register as a
sex offender in South Carolina, in violation of 18 U.S.C.
§ 2250. The district court determined that Sanderson is
incompetent to stand trial and ordered that he be involuntarily
medicated in an attempt to restore competency. Sanderson
appeals, claiming that involuntary medication, in this instance,
does not comply with the requirements of the Fifth Amendment’s
Due Process Clause. For the reasons that follow, we affirm.
I.
In 1998, Sanderson was convicted of attempted aggravated
sexual battery in Virginia state court, based on an incident
involving an eleven-year-old girl. Because of his conviction,
Sanderson was required to register as a sex offender. He was
convicted twice in Virginia state court for failing to register.
Toward the end of 2010, Sanderson moved to South Carolina,
where he again allegedly failed to register. After Sanderson
missed a scheduled meeting with a probation officer in Virginia,
a warrant was issued for his arrest. Thereafter, federal
authorities arrested him at a motel in Greenville, South
Carolina. Sanderson’s motel room was littered with pornographic
pictures and contained an intricate memorial to a country music
star, who Sanderson claimed was his common law wife. A federal
3
grand jury indicted Sanderson for failing to register pursuant
to the Sex Offender Registration and Notification Act (“SORNA”),
in violation of 18 U.S.C. § 2250.
Following the indictment, Dr. Dawn Graney, a forensic
psychologist at the Federal Correctional Institution, Butner
(“FCI Butner”), provided the court with an initial mental health
evaluation, which summarized Sanderson’s lengthy history of
mental health treatment. Dr. Graney offered a diagnosis of
Personality Disorder Not Otherwise Specified with Antisocial
Features and provisional diagnoses of Schizoaffective Disorder,
Alcohol Dependence with Physiological Dependence in a Controlled
Environment, and Paraphilia Not Otherwise Specified. During the
evaluation, Sanderson was defensive, rejected the diagnosis of
mental illness, and refused to take medication. Dr. Graney
concluded that Sanderson would be unable to assist in his own
defense, but that there was a substantial probability that
antipsychotic medications could restore Sanderson’s competency.
On July 6, 2011, a magistrate judge conducted an initial
competency hearing and (1) held that Sanderson was not competent
to stand trial; and (2) ordered that Sanderson remain at FCI
Butner for further treatment.
Several months later, Dr. Byron Herbel and Dr. Robert
Cochrane submitted a second forensic evaluation report. They
diagnosed Sanderson with Schizophrenia, Paranoid Type, with
4
Interepisode Residual Symptoms; Alcohol Dependence in Early Full
Remission in a Controlled Environment; Cannabis Abuse in Early
Full Remission in a Controlled Environment; Paraphilia Not
Otherwise Specified; and Antisocial Personality Disorder. Drs.
Herbel and Cochrane noted that prior evaluations described
Sanderson as being a moderate risk to reoffend; however, they
offered no independent opinion concerning Sanderson’s risk for
recidivism as a sex offender.
Drs. Herbel and Cochrane concluded that Sanderson remained
incompetent to stand trial. They also found that involuntary
medication was substantially likely to return Sanderson to
competency and substantially unlikely to have side effects that
would interfere significantly with Sanderson’s ability to assist
in his own defense. Drs. Herbel and Cochrane proposed a
specific treatment plan, which they concluded to be medically
appropriate.
The district court held a second competency hearing, at
which Dr. Herbel was the only witness. Consistent with his
report, Dr. Herbel testified that there was a substantial
probability that antipsychotic medications would restore
Sanderson’s competency to stand trial and that less intrusive
measures would not be effective. Dr. Herbel also testified that
there was no evidence that Sanderson posed any danger to himself
or others and that Sanderson would therefore be unlikely to
5
satisfy the criteria for civil commitment. At the conclusion of
the hearing, the court indicated it would order that Sanderson
be involuntarily administered antipsychotic medications. On
January 30, 2012, the court issued a written order.
This appeal followed. We have jurisdiction to review the
district court’s interlocutory order pursuant to Sell v. United
States, 539 U.S. 166, 176-77 (2003) (holding that an order to
involuntarily medicate a defendant is an appealable “collateral
order”).
II.
A.
Sanderson contends that the district court erred in
granting the government’s request that he be involuntarily
administered antipsychotic medications. To assess that
contention, we consider whether the record evidence presents
special circumstances sufficient to overcome the government’s
concededly significant interest in prosecuting Sanderson’s
alleged SORNA violation. We review the district court’s
analysis of this issue de novo. United States v. White, 620
F.3d 401, 410 (4th Cir. 2010).
An individual has a constitutionally protected liberty
interest in avoiding involuntary administration of antipsychotic
drugs, which may only be overcome by an “essential” or
6
“overriding” state interest. Sell, 539 U.S. at 178-79. The
Supreme Court has suggested that the instances in which the
government may seek such a remedy to restore a defendant’s
competency to stand trial “may be rare,” id. at 180, and we too
have cautioned against making this a routine remedy, see White,
620 F.3d at 422.
When the government seeks to forcibly medicate a defendant
to stand trial, the Due Process Clause requires that the
government establish by clear and convincing evidence that (1)
important governmental interests are at stake and not outweighed
by special circumstances that diminish those governmental
interests; (2) involuntary medication will significantly further
those governmental interests; (3) involuntary medication is
necessary to further those interests; and (4) the administration
of the drugs is medically appropriate. Sell, 539 U.S. at 180-
81; United States v. Bush, 585 F.3d 806, 813-14 (4th Cir. 2009).
With respect to the first factor, the Supreme Court has
provided an illustrative list of “special circumstances” that
could override an important governmental interest: (1) the
potential for civil confinement; (2) the potential for future
confinement for a defendant who regains competence; and (3) the
length of the defendant’s incarceration while charges are
pending. Sell, 539 U.S. at 180.
7
In White, we concluded that the government’s interest in
prosecuting a defendant for conspiracy, credit card fraud, and
identity theft did not outweigh her liberty interest. 620 F.3d
at 422. In doing so, we relied on four special circumstances:
(1) White would likely have spent a “significant amount of time”
in pretrial detention in relation to her likely sentence before
her trial could even begin; (2) White’s alleged crimes were
entirely non-violent; (3) White would likely not pose a threat
to the public, because she would not be permitted to carry a
firearm; and (4) the proposed antipsychotic drugs had rarely
been tried on someone with White’s diagnosed condition. Id. at
413-14.
With this legal framework in place, we turn to consider the
parties’ contentions on appeal.
B.
Sanderson argues only that the government has failed to
satisfy the first Sell factor. While conceding that there is an
important governmental interest in prosecuting the SORNA
offense, Sanderson contends that the following special
circumstances of his case override the government’s interest in
prosecuting him: (1) the charged offense is non-violent and
victimless; (2) even if released, Sanderson will be monitored
under SORNA and remain on indefinite probation in Virginia; (3)
Sanderson does not pose any danger to the public or himself, as
8
evidenced by his lack of criminal behavior in the last ten to
fifteen years, except for his failure-to-register offenses; (4)
Sanderson will have spent a significant amount of his likely
sentence in pretrial detention by the time he would be medicated
and tried; and (5) the government could easily try Sanderson
later if he regained competency because the evidence against him
is largely documentary and not dependent upon the memory of
witnesses.
The government contends that none of Sanderson’s supposed
special circumstances outweigh its interest in prosecuting the
charged offense. According to the government, it is irrelevant
that Sanderson’s alleged crime is non-violent because SORNA aims
to protect society from sex offenders by providing information
concerning their location. In the government’s view, the
charged offense is deemed serious because of the threat to
society as a whole. Second, the fact that Sanderson is already
subject to monitoring and supervision provides little comfort to
the government; Sanderson faces prosecution precisely because he
has ignored those requirements. Third, the government says that
Sanderson poses a threat if released because he is a sex
offender who has repeatedly violated his obligation to register
and has a history of violent offenses. Fourth, the government
contends that the length of Sanderson’s pretrial detention is
not long in relation to his likely sentence, and he is likely to
9
be restored to competency by antipsychotic medications.
Finally, the government posits that a trial may never occur
unless Sanderson receives medication because Sanderson is not
likely to regain competency on his own and even if he does, the
government may well face challenges locating Sanderson in the
future.
The district court agreed with the government. It
concluded that Sanderson’s failure-to-register offense, which
carries a ten-year maximum sentence, is a serious offense that
the government has an important interest in prosecuting. The
court rejected Sanderson’s argument that special circumstances
override that interest. First, it concluded that Sanderson’s
then eleven-month period of pretrial confinement was fairly
brief compared to his likely sentence. Second, it found that
Sanderson’s competence is likely to be restored by the
prescribed treatment plan. Therefore, the court concluded that
the first Sell factor was satisfied. The court also concluded
that the remaining Sell factors, which are not challenged on
appeal, were satisfied.
C.
We hold that the relevant special circumstances in this
case are insufficient to override the government’s interest in
prosecuting Sanderson for the charged SORNA offense.
Considering Sanderson’s purported special circumstances as a
10
whole, they present a less compelling argument against forcible
medication than the circumstances in White and fail to mitigate
the government’s interest in prosecuting him.
To begin with, the nature of the crime weighs in favor of
forcible medication. While Sanderson’s alleged SORNA violation
is technically a non-violent crime, the government correctly
notes that the purpose of failure-to-register laws is to protect
society as a whole from sex offenders. This stands in contrast
to the nature of the credit card fraud and identity theft crimes
charged in White, which, while certainly serious, are different
in both degree and kind.
Second, the monitoring requirements imposed by SORNA and
Virginia’s probation judgment do not help Sanderson here.
Indeed, the factual record is replete with instances of
Sanderson ignoring these requirements, including two convictions
in Virginia for failing to register, along with his absconding
from supervision in Virginia when he moved to South Carolina.
Third, the issue of whether Sanderson poses a public threat
weighs in favor of forcible medication. We acknowledge that
Sanderson has not been convicted of any crime, other than
failing to register, since 1998. Nor does the record contain
any evidence that Sanderson has been aggressive or violent
during that period. Nonetheless, Sanderson has a history of
violent offenses predating the offense giving rise to his
11
registration obligation, including assault with a deadly weapon,
various firearms offenses, and battery. Further, Sanderson’s
argument that he has not been prone to violence since 1998 is
undercut by the fact that he has spent a substantial amount of
that time in prison. And while Dr. Herbel’s opinion that
Sanderson “does seem to have some kind of sexual problems” is
not particularly compelling, J.A. 69, previous psychosexual
reports indicated that Sanderson was at a “moderate risk” to
reoffend in the community. Our concerns about Sanderson’s
record are buttressed by SORNA’s policy that previous sex
offenders should be monitored because they pose future threats.
And the fact that Sanderson, while posing a potential threat, is
not dangerous enough to be a candidate for civil commitment
weighs in favor of forcible medication because Sanderson will go
free if he is not restored to competency. See United States v.
Evans, 404 F.3d 227, 239 (4th Cir. 2005).
Fourth, the length of Sanderson’s pretrial detention does
not greatly mitigate the government’s interest. In White, the
defendant had spent nearly forty-one months in prison by the
time we issued the majority opinion in her case, a period of
confinement that the opinion’s author suggested might be close
to that she was likely to receive based on her Guidelines
12
sentence. See White, 620 F.3d at 418 (Davis, J.). 1 By
comparison, Sanderson had spent approximately two years in
pretrial detention 2 when we heard oral argument in this case. In
the district court, counsel estimated Sanderson’s Guidelines
sentence to be forty-one to fifty-one months’ imprisonment.
Assuming that this range is a reasonable estimate of Sanderson’s
expected prison sentence, the length of Sanderson’s pretrial
detention does not detract substantially from the government’s
interest in prosecuting him.
Apart from White, we have looked to the statutory maximum
in assessing the length of pretrial detention, a test under
which Sanderson fares worse. For example, we previously held
that two years of pretrial detention did not constitute a
significant “special circumstance” for a defendant facing a
potential eight-year sentence. Evans, 404 F.3d at 239.
Sanderson faces an even greater statutory maximum sentence of
ten years. Thus, while Sanderson’s extensive period of pretrial
detention weakens the government’s interest in prosecuting the
1
The Sixth Circuit recently cited favorably to this portion
of White and also measured the length of a defendant’s pretrial
detention against the Guidelines range. See United States v.
Grigsby, No. 11-3736, 2013 WL 1458009, at *9 (6th Cir. April 11,
2013).
2
We acknowledge that Sanderson’s treatment regimen may
extend to 12-14 weeks before he may be fit to stand trial.
Adding this period to the length of his pretrial detention does
not have a material impact on our analysis.
13
offense, it does not defeat it entirely under either the measure
employed in Evans or Judge Davis’s opinion for the court in
White. 3
Fifth, while it is true that the government will not be
substantially burdened in proving the offense if the case is
delayed, the record suggests that Sanderson will not regain
competence without medication. Therefore, the theoretical
potential of a future prosecution does little to weigh against
the government’s interest in trying Sanderson now.
Finally, the likely effectiveness of the prescribed
medication on Sanderson’s illness supports the government’s
request. Although this consideration appears to mirror the
second Sell factor--whether “administration of the drugs is
substantially likely to render the defendant competent to stand
3
Relying on his opinion in White, Judge Davis would also
factor into the period of pretrial detention the additional time
Sanderson will be detained “if he wishes to exhaust his
appellate rights” as well as any “good time credits” to which
Sanderson may be entitled. Post, at 23. It seems to us,
however, that whether Sanderson will exhaust his appellate
rights (and how long that will take) is entirely speculative, as
is the amount of good time credit (if any) that Sanderson may
earn while incarcerated. But even accepting that this
additional period of confinement is relevant to the analysis and
cuts against the government’s interest in prosecuting the
offense when compared to the estimated guidelines sentence
proferred by counsel, we are satisfied that the government
retains an “important interest in trying a defendant who is
charged with a crime that has the potential of [a ten-year]
prison term.” Evans, 404 F.3d at 239.
14
trial,” 539 U.S. at 181--we have previously used this as a
consideration in analyzing the first factor as well. White, 620
F.3d at 420-21. Unlike White, where the prescribed medication
had rarely been used to treat someone with the defendant’s
medical condition, see id., here medical professionals have
prescribed a treatment plan with a documented history of success
for individuals suffering, as Sanderson does, from paranoid
schizophrenia.
III.
In sum, the special circumstances present in this case do
not outweigh the government’s interest in prosecuting Sanderson.
Only the length of Sanderson’s pretrial detention constitutes a
special circumstance in his favor. But in light of the entire
record, that consideration alone is insufficient to defeat the
government’s interest in prosecuting Sanderson now for the
charged SORNA offense. We therefore affirm the district court’s
order.
AFFIRMED
15
DAVIS, Circuit Judge, dissenting:
I respectfully dissent.
I
At bottom, the majority’s concern appears to be that,
absent our affirmance of the involuntary medication order,
Sanderson will continue to live in society with an untreated
mental illness, contrary to the advice of doctors. However noble
that concern, Sell v. United States permits involuntary
medication only for the purpose of rendering a pretrial detainee
competent to stand trial, and only in those “limited
circumstances” in which the government’s interest in prosecution
is “essential” or “overriding.” 539 U.S. at 169, 178–79 (2003).
The government has failed to establish such an interest here.
If nothing else, the record shows that Sanderson has not
and will not register. There is no reason to believe that merely
convicting him (again) will impel him to do so. Today, he is a
mentally disordered, non-violent felon on lifetime probation in
the Commonwealth of Virginia. After he is forcibly medicated and
competently pleads guilty (as he undoubtedly will, see infra p.
24 n.6), he will become one of the more than a million mentally
ill inmates across the country. See U.S. Dep’t of Justice,
Bureau of Justice Statistics, Doris J. James & Lauren E. Glaze,
Mental Health Problems of Prison and Jail Inmates 1 (2006),
available at http://bjs.gov/content/pub/pdf/mhppji.pdf (“At
16
midyear 2005 more than half of all prison and jail inmates had a
mental health problem, including 705,600 inmates in State
prisons, 78,800 in Federal prisons, and 479,900 in local jails.
These estimates represented 56% of State prisoners, 45% of
Federal prisoners, and 64% of jail inmates.”). He may then
refuse his medication, increasing the likelihood that he will,
upon release, remain a mentally disordered, non-violent felon on
lifetime probation in the Commonwealth of Virginia, who probably
will not register. The idea that forced medication of Sanderson
will preclude the possibility that he will continue to live in
society with an untreated mental illness, contrary to the advice
of doctors, is fanciful, at best.
II
There are several more specific reasons I am compelled to
dissent.
As a preliminary matter, although the majority acknowledges
that the government bears the burden of proving, “by clear and
convincing evidence,” that “important governmental interests are
. . . not outweighed by special circumstances,” ante, at 7
(citing Sell, 539 U.S. at 180–81; United States v. Bush, 585
F.3d 806, 813–14 (4th Cir. 2009)), in light of the dramatically
weakened governmental interests discussed herein, it appears to
me to have applied a preponderance standard. See Jimenez v.
DaimlerChrysler Corp., 269 F.3d 439, 450 (4th Cir. 2001)
17
(“[C]lear and convincing has been defined as evidence of such
weight that it produces in the mind of the trier of fact a firm
belief or conviction, without hesitancy, as to the truth of the
allegations sought to be established, and, as well, as evidence
that proves the facts at issue to be highly probable.”)
(internal quotation marks, citations, and alterations omitted).
In this case, the government falls short of meeting that heavier
burden, as the record fails to show it is “highly probable” that
either Sanderson, the government, or the public at large will
enjoy a lasting benefit by affirmance of the district court’s
order. See United States v. White, 620 F.3d 401, 422 (4th Cir.
2010).
Furthermore, contrary to the majority’s unsupported
assertion, the “nature of the crime” does not “weigh[] in favor
of forcible medication.” Ante, at 11. The relevant crime is
failure to register, not sexual assault, cf. United States v.
Myers, 598 F.3d 474, 477–78 (8th Cir. 2010) (noting that a
defendant’s act of sexually assaulting a child in 1996 was
distinct from his act of failing to register as a sex offender
in 2008), and, as the majority grudgingly concedes, failure to
register is non-violent, ante, at 11. Although “the purpose of
failure-to-register laws is to protect society . . . from sex
offenders,” the majority fails to explain how this truism
counsels in favor of forced medication. Every criminal
18
proscription aims to protect society from criminals. And like
the alleged credit card fraud and identity theft at issue in
White, failure to register is a non-violent crime, the nature of
which diminishes the government’s interest in prosecution. 620
F.3d at 419. This could hardly be more self-evident than with
respect to an offender already on lifetime probation.
Also, the majority overstates the significance of
Sanderson’s prior convictions for failure to register,
concluding that “monitoring requirements imposed by SORNA and
Virginia’s probation judgment do not help him.” Ante, at 11. In
fact, the prior convictions indicate that monitoring works,
insofar as the government has located Sanderson when he has
failed to check in with his probation officer. The very purpose
of SORNA is to track sex offenders and notify the public where
they live. United States v. Under Seal, 709 F.3d 257, 265 (4th
Cir. 2013). As already mentioned, to the extent that Sanderson’s
failure to comply with monitoring requirements endangers public
safety, the government has not shown that forcibly medicating
him to stand trial would more effectively protect the public. In
the first place, the government has shown no connection between
Sanderson’s failure to register and his refusal to take
antipsychotic medication. But even if such a connection exists,
forcibly medicating Sanderson for competency purposes will not
ensure that he continues the medication should he be convicted
19
and sentenced. Indeed, as the record shows, Sanderson has
stopped taking antipsychotic medication in the past, and the
government conceded at oral argument that he could not be forced
to continue taking the medication after conviction and
sentencing unless he posed a danger to himself or others. See
Washington v. Harper, 494 U.S. 210, 227 (1990) (holding that the
Due Process Clause permits the government “to treat a prison
inmate who has a serious mental illness with antipsychotic drugs
against his will, if the inmate is dangerous to himself or
others and the treatment is in the inmate’s medical interest”).
The government’s own witness, Dr. Bryon Herbel, indicated that
the government is unlikely to make this showing because
Sanderson has exhibited no recent signs of “direct aggression,”
“violence” or “harm” toward himself, “others[,] or property of
others.” J.A. 50.
Next, the majority mistakenly suggests that Sanderson
“poses a public threat” that “weighs in favor of forcible
medication.” Ante, at 11. In reaching this conclusion, the
majority cites Sanderson’s “history of violent offenses,”
including “assault with a deadly weapon” and “battery,” id., but
overlooks details that diminish the apparent seriousness of
these crimes. For instance, although Sanderson was convicted of
assault with a deadly weapon in March 1991, he apparently was
confined only a few months: seven months later, he was arrested
20
for pedestrian soliciting rides or business. Similarly,
Sanderson was convicted of battery in September 1994, but
received only a 10-day sentence. Id. at 106. It is curious that
the majority believes it is better positioned to gauge the
seriousness of these past offenses than were the sentencing
judges. In any event, Dr. Herbel testified that Sanderson’s
recent history (the past 10 to 15 years) has been “relatively
free of direct aggression or violence or overt criminal behavior
aside from failure to register.” J.A. 50. Thus, contrary to the
majority’s assertion, Sanderson does not pose a public threat
absent medication.
Nor is it certain that Sanderson will simply “go free” if
we do not affirm the involuntary medication order. Ante, at 12.
Although the government may elect to dismiss the charges,
neither the government nor the majority has explained why
continued detention, for a reasonable amount of time, would
violate Sanderson’s due process, when forced medication would
not. 1 Moreover, “[e]very state provides avenues” for civil
1
To be sure, the government could not indefinitely detain
Sanderson. In Jackson v. Indiana, the Supreme Court held that
a person charged . . . with a criminal offense who is
committed solely on account of his incapacity to
proceed to trial cannot be held more than the
reasonable period of time necessary to determine
whether there is a substantial probability that he
will attain that capacity in the foreseeable future.
(Continued)
21
commitment, Sell, 539 U.S. at 182, and the record is devoid of
any facts indicating whether Sanderson would qualify for such a
program. 2
It seems clear to me, as well, that the majority
underestimates the time that Sanderson will have spent in
detention before trial, and how much this diminishes the
government’s interest in prosecuting him. The majority correctly
notes that, by the day of oral argument, Sanderson had been
detained about two years (24 months). Ante, at 13. His
restoration to competency will take at least 12 to 14 weeks, 3
If it is determined that this is not the case, then
the [government] must either institute the customary
civil commitment proceeding that would be required to
commit indefinitely any other citizen, or release the
defendant.
406 U.S. 715, 738 (1972). Here, Dr. Herbel testified that
“antipsychotic medication” is “the standard treatment of people
who suffer from schizophrenia,” and Sanderson would probably
remain incompetent without the drugs. J.A. 25–26, 48. But the
record also indicates that Sanderson has consented at least once
before to medication, and it is unclear whether Sanderson would
be more likely, after some period of continued detention (during
which his counsel could continue to advise him of his best
options), to consent to antipsychotic medication.
2
Dr. Herbel testified only that Sanderson would be a “weak
candidate” for commitment under federal law. J.A. 50.
3
See Dr. Herbel Test., J.A. 35–36 (noting that effective
treatment takes “eight weeks . . . at an adequate dose” of
antipsychotic medication) (emphasis added), and id at 59–60
(noting that “it may take a month or six weeks” to get to a
(Continued)
22
and Sanderson will be detained substantially longer if he wishes
to exhaust his appellate rights. Sanderson is entitled to move
for an en banc rehearing by this Court and to file a petition
for certiorari to the Supreme Court, avenues that could prolong
Sanderson’s detention at least six additional months. 4
Furthermore, the majority fails to consider the impact of good
time credits, which may significantly lengthen the amount of
time Sanderson will be deemed to have served, should he
ultimately be convicted and sentenced to prison. Barber v.
Thomas, 130 S. Ct. 2499, 2502 (2010) (“Federal sentencing law
permits . . . authorities to award prisoners credit against
prison time as a reward for good behavior.”) (citing 18 U.S.C. §
3624(b)).
Assuming Sanderson exhausts his appellate rights in six
months (increasing his detention to 30 months), and his
restoration to competency takes 12 weeks (increasing his
detention to 33 months), he will be entitled to about 146 days--
therapeutic dose). Indeed, the government requested an order
allowing treatment to last up to four months.
4
Our en banc petitioning process would take a minimum of
about 24 days. Fed. R. App. P. 40. Sanderson could file his
petition for certiorari anytime within 90 days of the final
ruling by the Fourth Circuit, and if the Government wanted to
file a brief in opposition, the process would take an additional
30 days. Sup. Ct. R. 13(1), 15(3). Thus, if the Supreme Court
denied his petition in less than five weeks, Sanderson’s legal
remedies would be entirely exhausted in about six months.
23
or nearly five months--of good time credits, increasing his
total (credited) detention to nearly 38 months. See Barber, 130
S.Ct. at 1502–03; White, 620 F.3d at 414 n.13; 18 U.S.C. §
3624(b). This total, of course, does not include the months he
will have remained in detention pending our decision in this
appeal, and awaiting his trial and sentencing. 5 Adding those
months to the total no doubt will bring Sanderson’s credited
detention within his advisory guidelines sentencing range of 41
to 51 months. 6
I note, in addition, that the majority concedes that “the
government will not be substantially burdened in proving the
5
The majority asserts that “whether Sanderson will exhaust
his appellate rights (and how long that will take) is entirely
speculative.” Ante, at p.14 n.4. But “just as counsel has
vigorously pursued the appeal to this court on behalf of his
mentally ill client, we would expect his vigorous representation
to continue through further appellate review.” White, 602 F.3d
at 414 n.11.
6
If Sanderson were to plead guilty after becoming competent
(and it is impossible to believe he will not), his advisory
guidelines sentencing range would be even lower: 30-37 months.
See U.S. Sentencing Guidelines Manual § 2A3.5 (2013) (providing
a base offense level of 16 for failure to register as a Tier III
sex offender); id. at § 3E1.1 (allowing a three-level reduction
in a defendant’s offense level for acceptance of
responsibility); id. at Sentencing Table (providing for an
advisory sentencing range of 30-37 months for a defendant with
an offense level of 13 and criminal history category V). See
also United States v. Grigsby, No. 11-3736, 714 F.3d 964, ---,
2013 WL 1458009, at *9 (6th Cir. 2013) (taking into account this
three-level, acceptance-of-responsibility reduction when
considering the propriety of forcibly medicating a pretrial
detainee to become competent to stand trial).
24
offense if the case is delayed.” Ante, at 14. Although the Sell
Court expressly identified this as a special circumstance that
diminishes the government’s interest in prosecution, Sell, 539
U.S. at 180, the majority erroneously concludes that it counsels
in favor of forced medication, because “the record suggests that
Sanderson will not regain competence without medication.” Ante,
at 14. The majority’s focus is misplaced. Whether Sanderson will
improve without medication is a separate question from whether
he will likely consent to medication. That he has refused so far
does not mean that he may not consent in the future. And because
Sanderson’s prosecution does not depend on witnesses whose
“memories may fade” or on “evidence [that] may be lost,” Sell,
539 U.S. at 180, the government has failed to show that
immediate forced medication is preferable to continued detention
for a reasonable period of time. 7
7
I do not dispute the majority’s conclusion that “the
likely effectiveness of the prescribed medication on Sanderson’s
illness supports the government’s request” to forcibly medicate
Sanderson. Ante, at 14. Sanderson conceded as much by not
challenging the government’s proof of the second Sell factor,
whether “involuntary medication will significantly further” the
government’s interest in prosecution. Sell, 539 U.S. at 181(emphasis in original). Our focus, of course, is on the first
Sell factor, and while the efficacy of antipsychotic medication
may not diminish the government’s interest in prosecution,
neither does it increase that interest.
25
III
In sum, the majority has failed to “ensure that this case
is sufficiently exceptional to warrant the extraordinary measure
of forcible medication.” White, 620 F.3d at 413. Sanderson is
charged with a non-violent crime; he poses no physical danger to
society; forcibly medicating him to become competent for trial
will not ensure his continued medication after adjudication,
either during any period of further incarceration or after his
certain release; the government will not be substantially
burdened in proving the crime if the case is delayed; and
Sanderson is unlikely to receive a sentence longer than the time
he will have already served, should he be convicted. Such
circumstances make clear that “little public good or benefit
will be achieved” in forcibly medicating Sanderson to stand
trial. White, 602 F.3d at 422. 8
8
Without in any manner questioning the bona fides of the
district court’s order, the plain fact that any judge wants to
move cases off his docket cannot go unremarked upon. In federal
and state “Baby Judge Schools,” see, e.g., Steinebach v. Tucson
Electric Power Co. (In re Steinebach), 303 B.R. 634, 640 (Bankr.
D. Ariz. 2004), and In re Conduct of Galler, 805 N.W.2d 240, 245
(Minn. 2011), judges are routinely tutored to be mindful not to
permit docket pressures to seep into decision-making.
Sanderson’s case presents a paradigm challenge: if he’s not
medicated, what is a beleaguered district judge to do? While I
appreciate the challenge, we should hesitate to make forcible
medication the default solution. Certainly, Sell does not
countenance such an outcome. Nor is there any warrant for the
Third Branch to act as the all-purpose problem-solver for
systemic challenges traceable to both legislative efforts to
(Continued)
26
We should reverse the order of the district court.
Respectfully, I dissent.
over-federalize criminal law, see United States v. Bond, 681
F.3d 149, 169 (3d Cir. 2012) (Rendell, J., concurring) (“Perhaps
lured by the perception of easier convictions and tougher
sentences, prosecutors opt to proceed federally. There is no law
against this, or principle that we can call upon, to limit or
regulate it.”) (internal citation omitted), cert. granted, 133
S.Ct. 978 (2013), and to the sometimes dubious exercise of
prosecutorial discretion to which those efforts give rise, see
generally Daniel Richman, Prosecutors and Their Agents, Agents
and Their Prosecutors, 103 Colum. L. Rev. 749, 795 (2003)
(“[T]he federal criminal ‘code’ may well be even broader than
that of the states in the range of conduct it ostensibly
covers.”). See also Michael A. Simons, Prosecutorial Discretion
and Prosecution Guidelines: A Case Study in Controlling
Federalization, 75 N.Y.U. L. Rev. 893 (2000); Kathleen F.
Brickey, Criminal Mischief: The Federalization of American
Criminal Law, 46 Hastings L.J. 1135 (1995).
27