                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                             November 13, 2013
                                                             Elisabeth A. Shumaker
                                                                 Clerk of Court
                                  PUBLISH

              UNITED STATES COURT OF APPEALS

                              TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                    No. 12-2126

 REYDECEL CHAVEZ,

       Defendant-Appellant.


                 Appeal from the United States District Court
                        for the District of New Mexico
                      (D.C. No. 1:11-CR-01207-JCH-1)


John T. Carlson, Assistant Federal Public Defender (Warren R. Williamson,
Interim Federal Public Defender, with him on the briefs), Denver, Colorado, for
Defendant-Appellant.

David N. Williams, Assistant United States Attorney (Kenneth J. Gonzales,
United States Attorney, with him on the brief), Albuquerque, New Mexico, for
Plaintiff-Appellee.


Before BRISCOE, Chief Judge, SEYMOUR, and LUCERO, Circuit Judges.


SEYMOUR, Circuit Judge.
      Reydecel Chavez, a native of Mexico, is charged with being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2);

being an illegal alien in possession of a firearm, in violation of 18 U.S.C. §§

922(g)(5) and 924(a)(2); and reentry of a removed alien, in violation of 8 U.S.C.

§ 1326(a) and (b). He appeals the district court’s order permitting the

government to involuntarily medicate him pursuant to United States v. Sell, 539

U.S. 166 (2003), in order to make him competent to stand trial. Exercising

jurisdiction pursuant to the collateral order exception to the final order rule of 28

U.S.C. § 1291, United States v. Bradley, 417 F.3d 1107, 1109 n.1 (10th Cir.

2005), we reverse.



                                          I

      Soon after Mr. Chavez was indicted, both parties agreed that he should be

evaluated to determine his competency to stand trial. In October 2011, the

district court committed Mr. Chavez to a Bureau of Prisons (BOP) medical center

in Springfield, Missouri for a competency determination pursuant to 18 U.S.C. §

4241. A BOP psychologist, Dr. Richart DeMier, issued a report upon the

completion of the psychological evaluation. He concluded that Mr. Chavez

suffers from paranoid schizophrenia and, in his current condition, is not

competent to stand trial. The report also determined that Mr. Chavez is not a

danger to himself or others while in custody and could likely be rendered

                                         -2-
competent with antipsychotic medication. Mr. Chavez, however, consistently

refused to consent to treatment. The district court conducted a competency

hearing and found Mr. Chavez incompetent to assist properly in his defense due

to a mental disease or defect. At the court’s suggestion, the government then

filed a motion for psychiatric treatment and compulsory medication in order to

render Mr. Chavez competent to stand trial. After an evidentiary hearing pursuant

to Sell, the district court granted the government’s motion to medicate Mr.

Chavez involuntarily and issued a sealed written order to that effect. Mr. Chavez

contends on appeal that the court erred in concluding the government satisfied the

requirements of Sell.



                                          II

      It is well settled that “an individual has a significant constitutionally

protected liberty interest in avoiding the unwanted administration of antipsychotic

drugs.” Sell, 539 U.S. at 178 (internal quotation marks omitted); see also

Bradley, 417 F.3d at 1114 (recognizing involuntary medication to render

defendant competent implicates a “vital constitutional liberty interest”). In Sell,

the Supreme Court held that the government may involuntarily administer drugs

to a mentally ill, non-dangerous defendant in order to render him competent to

stand trial only upon a four-part showing. The government must establish that:

(1) “important governmental interests are at stake;” (2) the “involuntary

                                         -3-
medication will significantly further” those interests; (3) the “involuntary

medication is necessary to further those interests,” e.g., less intrusive alternative

treatments are unlikely to be effective; and (4) the administration of the

medication is “medically appropriate” and in the defendant’s best medical

interests. Sell, 539 U.S. at 180-81 (emphasis in original). Such “instances of

involuntary medication of a non-dangerous defendant solely to render him

competent to stand trial should be ‘rare’ and occur only in ‘limited

circumstances.’” United States v. Valenzuela-Puentes, 479 F.3d 1220, 1223 (10th

Cir. 2007) (quoting Sell, 539 U.S. at 169, 180). 1

      The first and second Sell requirements, whether the government’s claimed

interest in prosecution is important and whether involuntary administration of

antipsychotic drugs will significantly further that interest, are primarily legal

questions that we review de novo. Bradley, 417 F.3d at 1113-14. Whether the

involuntary medication is necessary to further the state’s interests in prosecution

and whether the forced treatment is medically appropriate—the third and fourth


1
       When “forced medication is warranted for a different purpose, such as the
purposes set out in Harper related to the individual’s dangerousness,” a court
should first attempt to justify involuntary medication on those “Harper-type”
grounds before turning to a Sell order. Sell, 539 U.S. at 181-83 (emphasis in
original) (citing Washington v. Harper, 494 U.S. 210 at 225-26 (1990); see also
Valenzuela-Puentes, 479 F.3d at 1224 (same). Because it is undisputed that Mr.
Chavez does not present a danger to himself or others while in confinement, the
district court was not required to perform a Harper analysis before determining
whether Mr. Chavez could be forcibly medicated pursuant to Sell. See
Valenzuela-Puentes, 479 F.3d at 1224.

                                          -4-
parts of the Sell analysis—are factual questions that we review for clear error.

Valenzuela-Puentes, 479 F.3d at 1224. The district court must find all necessary

underlying facts by clear and convincing evidence. Id. “A finding of fact is not

clearly erroneous unless it is without factual support in the record, or unless the

court after reviewing all the evidence, is left with a definite and firm conviction

that the district court erred.” United States v. Jarvison, 409 F.3d 1221, 1224

(10th Cir. 2005) (internal quotation marks omitted).

      Mr. Chavez contends that by refusing to require the government to submit a

personal treatment plan specifically identifying which medications would be

administered to him and at what doses, the district court had insufficient evidence

to find both that involuntary medication would “significantly further”

governmental interests and that forcibly medicating him would be “medically

appropriate,” pursuant to Sell’s second and fourth parts respectively. 2 To satisfy

the second prong of Sell, a court must find both “that administration of the drugs

is substantially likely to render the defendant competent to stand trial,” and “that

administration of the drugs is substantially unlikely to have side effects that will

interfere significantly with the defendant’s ability to assist counsel in conducting

a trial defense, thereby rendering the trial unfair.” Sell, 539 U.S. at 181


2
       Mr. Chavez also contends the district court failed to properly assess the
first Sell factor by not considering the possibility that he could be civilly
committed if involuntary medication was not authorized. We do not reach this
argument because it was not raised below.

                                          -5-
(emphasis added). The fourth Sell finding a court is required to make is that the

“administration of the drugs is medically appropriate, i.e., in the patient’s best

medical interest in light of his medical condition.” Id. (emphasis in original).

The Court explained in Sell that in making this finding, “[t]he specific kinds of

drugs at issue may matter here as elsewhere.” Id. This is because “[d]ifferent

kinds of antipsychotic drugs may produce different side effects and enjoy

different levels of success.” Id.

      Mr. Chavez argues that by not requiring the government to prepare a

treatment plan describing specifically which antipsychotic medications might be

forcibly administered to him, and at what range of doses, it was impossible for the

district court to determine that involuntarily medicating him would “be

substantially unlikely to have side effects that will interfere significantly with the

defendant’s ability to assist counsel” at trial or that the administration of the

drugs would be “medically appropriate” for him. See id. Mr. Chavez preserved

this ground for appeal by raising these objections at the evidentiary hearing.

After reviewing the record, we agree that the district court erred by ordering the

compulsory medication of Mr. Chavez without sufficient information from a

medical doctor to support its findings on these parts of the Sell analysis. As a

result, the court’s order did not include any meaningful limits on the

government’s discretion in treating Mr. Chavez, which is contrary to Sell.

      At the evidentiary hearing, the government’s sole witness, Dr. DeMier,

                                          -6-
testified that no individualized treatment plan for Mr. Chavez had yet been

prepared. He stated that a treatment plan specific to Mr. Chavez would be

completed only after involuntary treatment had been authorized by the court.

Instead, Dr. DeMier described what he called “the typical treatment plan.” Rec.,

vol. II at 29. He explained that “the most common approach” to involuntarily

medicating a defendant suffering from schizophrenia is to administer a first-

generation antipsychotic medication called Haldol via injection, which he said

would “probably be the first line of treatment.” Id. at 29-30 (emphasis added).

Dr. DeMier stated that if Mr. Chavez could be convinced to voluntarily take

medication, “a first line of treatment might be a second-generation medication,

such as Abilify or Risperdal,” which are not available in injectable form. Id. at

30 (emphasis added). When asked whether it was possible that during the

treatment of Mr. Chavez the medical team would switch drugs, Dr. DeMier

replied, “Oh, yes. That’s very common.” Id. at 32. He explained that switching

medications is often necessary because “[p]eople are different. They respond

differently to different types of medications.” Id.

      Dr. DeMier also provided testimony about the success rate of rendering

defendants suffering from schizophrenia competent to stand trial through

treatment with antipsychotic medications generally, as well as the potential side

effects of some antipsychotic drugs. Relying on his own experience as well as

two studies submitted into evidence by the government, he testified that roughly

                                         -7-
three-quarters of defendants treated with antipsychotic medication are

successfully rendered competent to stand trial. Regarding potential side effects

caused by different types of antipsychotic medication, Dr. DeMier stated that

“[i]n the vast majority of cases, the side effects can be effectively addressed by

either changing the medication, the dosage . . . the time of day at which the

person gets the medication, or through other medications . . . that are designed

specifically to address those side effects.” Rec., vol. II at 42. When questioned

about the possible side effects of Haldol, the only drug Dr. DeMier discussed

specifically, he described the possible short-term side effects as “nuance side

effects,” such as “dry mouth, blurred vision, sometimes muscle stiffness [or]

spasms.” Id. at 43. He stated that the most serious potential long-term side effect

of Haldol, tardive dyskinesia (a disorder causing involuntary facial movements),

typically only occurs after approximately twenty years of taking the medication.

      Dr. DeMier did not, however, actually identify which drug or drugs Mr.

Chavez would initially be treated with, nor what other medications might be

administered if the first drug regimen proved ineffective or the side effects too

severe. Nor did he testify regarding the possible dosage amounts of any

medications that might be administered to Mr. Chavez. In fact, Dr. DeMier

admitted he would not be making that decision, stating: “I’m a psychologist, not a

psychiatrist. So the psychiatrist would have the ultimate decision-making

authority regarding exactly what medications to use.” Id. at 47. Dr. DeMier

                                         -8-
added that if the court wanted a specific treatment plan to review, “we could

certainly do that.” Id.

      Mr. Chavez’s counsel objected to the lack of an individualized treatment

plan as being so open ended as to allow “experimentation” on Mr. Chavez,

asserting that an order for involuntary medication not based on a specific

treatment plan could not satisfy the requirements of Sell. Id. at 77-78. But the

district court overruled his objection, stating that no individualized treatment plan

was necessary because “Dr. DeMier isn’t testifying here today in a vacuum. He

has knowledge of [Mr. Chavez] and has evaluated him.” Id. at 85. The court

concluded at the end of the hearing that the government had met its burden on the

four required Sell showings and granted the government’s motion for compulsory

medication without providing any details regarding what drugs could be

administered to Mr. Chavez or at what doses. The court’s written order similarly

lacked any limits on the government’s discretion in treating Mr. Chavez, stating

simply that the Sell findings being satisfied, Mr. Chavez “may be forcibly treated

with medication to treat [his] schizophrenia . . . .” Rec., vol. I at 91-92. The

court stated it would require a status report “when we are about six weeks into

treatment.” Id. at 94.

      Without a treatment plan that specifies which medications the government

intends to administer to Mr. Chavez, Dr. DeMier’s testimony regarding the

“typical” treatment plan and the success rates and side effects of a few common

                                          -9-
antipsychotic drugs is of limited value in completing a proper analysis under the

second and fourth parts of Sell. Moreover, without an individualized treatment

plan the government is not bound to administer the drugs discussed in general

terms at the hearing. Because different types of antipsychotic drugs can produce

different side effects and result in different degrees of success, granting the

government such unfettered discretion in determining which drugs will be

administered to a defendant does not conform with the findings required by Sell.

Sell, 539 U.S. at 181-83; see also Harper, 494 U.S. at 229 (noting that certain

antipsychotic drugs “can have serious, even fatal, side effects”); Riggins v.

Nevada, 504 U.S. 127, 134 (1992) (same).

      As the Court explained in Sell, “[w]hether a particular drug will tend to

sedate a defendant, interfere with communication with counsel, prevent rapid

reaction to trial developments, or diminish the ability to express emotions are

matters important in determining the permissibility of medication to restore

competence . . . .” Sell, 539 U.S. at 185 (emphasis added). These important

matters are impossible for a court to accurately consider without information

regarding which particular drugs might be administered to a defendant. Indeed,

as Mr. Chavez’s counsel correctly noted, without an individualized and specific

treatment plan the government could experiment on a defendant with potentially

dangerous drugs, or administer otherwise safe drugs at dangerously high dosages.

      The requirement included in the district court’s order for the government to

                                         -10-
report back with a status update in six weeks, while proper, cannot serve as a

substitute for a specific treatment plan. See United States v. Hernandez-Vasquez,

513 F.3d 908, 917 (9th Cir. 2007). Likewise, the fact that Dr. DeMier had

evaluated Mr. Chavez over a significant period of time and was quite familiar

with his diagnosis and individual circumstances provided important information

for the court’s Sell analysis, but it does not satisfy the need for a specific medical

treatment plan that would impose some limits on the government’s discretion in

forcibly medicating Mr. Chavez.

      While Sell does not explicitly identify what level of specificity is required

in a court’s order for involuntary medication, and we have not yet addressed this

issue, the need for a high level of detail is plainly contemplated by the

comprehensive findings Sell requires. This is particularly so where, as here, there

is no evidence in the record that a psychiatrist, who will be prescribing the drugs,

has evaluated Mr. Chavez for purposes of determining whether it is appropriate to

involuntarily medicate him. Accordingly, we hold that an order to involuntarily

medicate a non-dangerous defendant solely in order to render him competent to

stand trial must specify which medications might be administered and their

maximum dosages. Without this information, a court cannot ensure that the

“administration of the drugs is substantially unlikely to have side effects that will

interfere significantly with the defendant’s ability to assist counsel in conducting

a trial defense,” as required by the second prong of Sell. Sell, 539 U.S. at 181.

                                          -11-
Similarly, without knowing which drugs the government might administer and at

what range of doses, a court cannot properly conclude that such a vague treatment

plan is “medically appropriate, i.e., in the patient’s best medical interest” as the

fourth part of Sell demands. Id. (emphasis omitted). As such, we hold that the

district court here erred in concluding that these required showings had been

satisfied.

       Our sister circuits addressing this issue have similarly held that Sell orders

must be based on individualized treatment plans that identify which drugs will

potentially be administered to a defendant and their dosage range. The Ninth

Circuit, deciding a case with facts very similar to those here, held in Hernandez-

Vasquez that

       [a]t a minimum, to pass muster under Sell, the district court’s
       order must identify: (1) the specific medication or range of
       medications that the treating physicians are permitted to use in
       their treatment of the defendant, (2) the maximum dosages that
       may be administered, and (3) the duration of time that involuntary
       treatment of the defendant may continue before the treating
       physicians are required to report back to the court . . . .

513 F.3d at 916-17. Applying those requirements, the court vacated and

remanded the district court’s Sell order, which, as here, “[did] not limit

meaningfully the discretion delegated to the Government’s physicians.” Id. at

917.

       Similarly, in United States v. Evans, the Fourth Circuit reviewed an

involuntary medication report on which the district court based its Sell order and

                                         -12-
was “unable to discern . . . what medication [the government] planned to give [the

defendant] to restore his competency.” 404 F.3d 227, 240 (4th Cir. 2005). It

vacated the district court’s order, holding that “for the district court even to

assess whether involuntary medication is constitutionally permissible under Sell’s

second and fourth factors, the government must set forth the particular

medication, including the dose range, it proposes to administer to [the defendant]

to restore his competency.” Id. at 241. The court explained that “[t]o approve of

a treatment plan without knowing the proposed medication and dose range would

give prison medical staff carte blanche to experiment with what might even be

dangerous drugs or dangerously high dosages of otherwise safe drugs . . . .” Id.

      The Sixth Circuit in United States v. Green, 532 F.3d 538, 555-56 (6th Cir.

2008), applied Hernandez-Vasquez and Evans in assessing the government’s

proposed treatment plans for the involuntary medication of Mr. Green. In that

case, the district court heard testimony from two physicians who evaluated Mr.

Green at the federal medical center, id. at 543-44, and who proposed a specific

treatment plan, individualized to Mr. Green, which “set[] forth the specific

medications, alternative means of injecting it, the specific dosage, and the

potential side effects Green could face,” id. at 557. This level of detail satisfied

the court that the Sell requirements were met. Id. at 556-58 (concluding the

specific treatment plan provided at the hearing and recounted in a sealed

memorandum appended to the court order to be sufficient).

                                          -13-
      In requiring district court orders under Sell to specify the drugs that may be

administered and their maximum dosages, we are mindful of the balance we must

strike between the judicial oversight necessary to protect defendants’

constitutional rights and the need of prison medical staff to retain a degree of

flexibility in order to provide effective treatment. See Hernandez-Vasquez, 513

F.3d at 917 (“[W]hile the court may not simply delegate unrestricted authority to

physicians, the restrictions it does impose should be broad enough to give

physicians a reasonable degree of flexibility in responding to changes in the

defendant’s condition.”). Therefore, so long as all drugs that might be

administered to a defendant and their maximum dosages are specified, courts may

properly approve treatment plans identifying a range of medications that could be

used if the first drug or drugs administered prove unsatisfactory. See id. at 916

(requiring Sell orders to identify “the specific medication or range of

medications” that may be administered to a defendant) (emphasis added); see also

Green, 532 F.3d at 557 (“The fact that [the physician] offered alternatives

depending on Green’s reaction to forced medication only supports the

individualized and appropriately tailored nature of her treatment plan.”). We also

note that either the government or the defendant may move to revise the court’s

Sell order if circumstances change during a defendant’s treatment.

      In sum, we hold that the district court clearly erred by concluding that the

second and fourth Sell requirements were satisfied without sufficient information

                                         -14-
to support these determinations. Accordingly, we vacate the court’s order

granting the government’s motion to allow involuntary medication of Mr. Chavez

and remand for further proceedings consistent with this opinion.




                                       -15-
