                             UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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
