                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 14-4388


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JOHN WATSON, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   T. S. Ellis, III, Senior
District Judge. (1:13-cr-00336-TSE-IDD-1)


Argued:   December 11, 2014                   Decided:    July 17, 2015


Before TRAXLER,     Chief   Judge,   and   WYNN   and   HARRIS,   Circuit
Judges.


Reversed by published opinion. Judge Harris wrote the majority
opinion, in which Judge Wynn joined. Chief Judge Traxler wrote
a dissenting opinion.


ARGUED:    Nicholas John Xenakis, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.        Julia K.
Martinez, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.     ON BRIEF:    Michael S. Nachmanoff,
Federal Public Defender, Kenneth P. Troccoli, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.    Dana J. Boente, United
States   Attorney,  OFFICE   OF  THE  UNITED   STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
PAMELA HARRIS, Circuit Judge:

       Following his arrest for firing a handgun at a Coast Guard

helicopter, appellant John Watson, Jr. (“Watson”), who suffers

from    Delusional       Disorder,      Persecutory          Type,     was   found

incompetent to stand trial and committed to the custody of the

Attorney   General     for   mental    health    treatment      and    evaluation.

After Watson refused to take antipsychotic medication in order

to   render   himself    competent,     the    district      court     granted   the

government’s request that he be medicated by force.                      Given the

critical liberty interests at stake, we require the government

to meet a heavy burden to justify forcible medication, and we

require courts to conduct a searching inquiry in order to ensure

that   this   burden    is   met.      In    this    case,    we     conclude,   the

government has not met its burden of proving that involuntary

medication     is      substantially        likely    to      restore     Watson’s

competency, as required by Sell v. United States, 539 U.S. 166

(2003).    Accordingly, we reverse.



                                       I.

       “The forcible injection of medication into a nonconsenting

person’s body . . . represents a substantial interference with

that person’s liberty.”         Riggins v. Nevada, 504 U.S. 127, 134

(1992) (quoting Washington v. Harper, 494 U.S. 210, 229 (1990)).

The interference is “particularly severe” when, as in this case,

                                        2
the medication in question is an antipsychotic, Riggins, 504

U.S.   at    134,    for   the   use      of       such    medications      threatens    an

individual’s “mental, as well as physical, integrity,” United

States v. White, 620 F.3d 401, 422 (4th Cir. 2010) (Keenan, J.,

concurring).         On    the   physical          side,    there    is   the     “violence

inherent in forcible medication,” id., compounded when it comes

to antipsychotics by the possibility of “serious, even fatal,

side effects,” Harper, 494 U.S. at 229.                      But it is the invasion

into    a    person’s       mental        state       that     truly      distinguishes

antipsychotics, a class of medications expressly intended “to

alter the will and the mind of the subject.”                          United States v.

Bush, 585 F.3d 806, 813 (4th Cir. 2009) (quoting Harper, 494

U.S. at 238 (Stevens, J., concurring in part and dissenting in

part)).

       For   those    reasons,     as     we       have    recognized,      the    forcible

administration        of    antipsychotic             medication       “constitutes       a

deprivation     of    liberty     in    the        most    literal    and    fundamental

sense,” Bush, 585 F.3d at 813 (quoting Harper, 494 U.S. at 238

(Stevens,     J.,    concurring      in    part       and    dissenting      in    part)),

justified only by a government interest that rises to the level

of “essential” or “overriding,” Sell v. United States, 539 U.S.

166, 178-79 (2003) (quoting Riggins, 504 U.S. at 134, 135).                             The

government’s interest in prison safety and security, the Supreme

Court held in Harper, qualifies as such an interest, and may

                                               3
justify involuntary medication when an inmate suffering from a

“serious mental illness” is “dangerous to himself or others,”

and “the treatment is in [his] medical interest.”                             494 U.S. at

227.

       Under certain circumstances, a mentally ill defendant who

is not dangerous to himself or others within the meaning of

Harper      may    nevertheless        be     forcibly    medicated     for      the     sole

purpose of rendering him competent to stand trial.                               See Sell,

539 U.S. at 179.             But that is the exception, not the rule.

Forcible medication is not justified every time an incompetent

defendant refuses treatment; on the contrary, “those instances

may be rare.”             Id. at 180.          As we have emphasized, forcible

medication        under    Sell   is    “a     tool    that   must    not   be      casually

deployed,”        and   courts    must       be    vigilant   to     ensure    that      such

orders,      which      “carry    an    unsavory        pedigree,”     do     not    become

“routine.”        United States v. Chatmon, 718 F.3d 369, 373-74 (4th

Cir. 2013).

       To   “minimize[]       the      risk    of     erroneous    decisions        in   this

important context,” we have set a deliberately high standard for

the government to satisfy before it may forcibly medicate solely

to render an inmate competent to stand trial.                        Bush, 585 F.3d at

814.     Like other courts of appeals to consider the issue, we

require that the government meet its burden by the “clear and

convincing” standard.             Id.; see, e.g., United States v. Dillon,

                                               4
738 F.3d 284, 292 (D.C. Cir. 2013) (“Holding the government to a

clear and convincing standard of proof affords due regard to the

nature of the liberty interest at stake in forced-medication

cases.”); United States v. Green, 532 F.3d 538, 545 (6th Cir.

2008) (applying clear and convincing standard); United States v.

Gomes, 387 F.3d 157, 160 (2d Cir. 2004) (same).                   That is a heavy

burden, requiring “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,” or “evidence that proves the facts at issue to

be highly probable.”     United States v. Heyer, 740 F.3d 284, 292

(4th Cir. 2014) (quoting Jimenez v. DaimlerChrysler Corp., 269

F.3d 439, 450 (4th Cir. 2001)).

       In this context, we require that the government prove by

clear and convincing evidence each of four factors.                    “First, the

government must show that ‘important governmental interests are

at stake’ and that special circumstances do not sufficiently

mitigate   those   interests.”       White,      620     F.3d    at   410   (quoting

Sell, 539 U.S. at 180).         Second, the government must show that

“involuntary   medication   .    .   .       significantly       further[s]    [its]

interests,”    which   requires      proof        that     the     medication    is

“substantially likely to render the defendant competent to stand

trial” and “substantially unlikely to have side effects that

will   interfere   significantly     with       the    defendant's     ability    to

                                         5
assist counsel at trial.”                 Id. (quoting Sell, 539 U.S. at 181)

(internal    quotation          marks    omitted).            “Third,        the    involuntary

medication      must       be     necessary        to    further        the        government's

interests, and less intrusive means must be unlikely to achieve

substantially the same results.”                   Id. (citing Sell, 539 U.S. at

181).     Fourth and finally, “the court must conclude that the

administration        of    drugs    is     medically         appropriate          and   in   the

patient’s    best      medical       interests          in   light      of    [his]      medical

condition.”          Id. (citing Sell, 539 U.S. at 181).                             With this

demanding standard in mind, we now consider whether the district

court properly found that forcible medication is justified in

this case.       United States v. Watson, No. 1:13-cr-366, 2014 WL

1901256, at *1 (E.D. Va. Apr. 29, 2014).



                                             II.

                                             A.

     On    September        28,     2012,    Watson          was   observed         shooting    a

handgun    at    a    Coast      Guard     helicopter         flying     overhead.            The

helicopter was not damaged, and none of the three Coast Guard

employees on board was injured.                    On August 15, 2013, Watson was

indicted        for        attempted        destruction            of         an      aircraft,

18 U.S.C. § 32(a)(1), (8); possession of a firearm by a felon,

18 U.S.C. § 922(g)(1); and use of a firearm during a crime of

violence, 18 U.S.C. § 924(c)(1)(A).

                                              6
      Days after Watson’s arrest, the magistrate judge granted

the parties’ joint motion for a competency hearing, and Watson

was interviewed by licensed clinical psychologist Dr. Rebecca J.

Peterson (“Peterson”).           Watson told Peterson that he had been a

covert operative for the British special forces since he was

seven years old, that the Coast Guard and Secret Service were

among the government agencies “working to help protect him from

danger and . . . guide him,” that certain “entities . . . ha[d]

‘tapped’ his phones and computer,” and “that someone ha[d] been

on   his   boat      going    through   his   letters     and    papers.”       Watson

further indicated that this delusional system of beliefs had

been guiding his behavior since at least February 2009, when he

arrived    in     the    Washington,    D.C.,    area    in     order    to   seek   the

protection      of      the   British   Embassy    and    was     referred      to   St.

Elizabeth’s       Hospital      (“St.    Elizabeth’s”)         for   mental     health

treatment.

      On the basis of this interview, Peterson concluded that

Watson was “unable to participate meaningfully and effectively

in his defense” as a result of his delusions, and in particular

his belief that his status as a covert operative for the United

Kingdom entitles him to diplomatic immunity.                         The magistrate

judge agreed, and Watson was transferred to the Federal Medical

Center     in   Butner,       North   Carolina    (“FMC       Butner”)    for   mental

health evaluation and treatment.

                                          7
      Approximately       six      months      later,     on   April        4,    2013,     the

government    submitted       to    the      court    a   report     completed       by     FMC

Butner     staff    psychiatrist        Dr.    Robert     G.   Lucking       (“Lucking”),

which recommended that Watson be forcibly medicated in order to

render him competent to stand trial.                       Because the government

relies     exclusively       on    Lucking’s        opinion    to    show        there    is   a

substantial        likelihood      that      forcible     medication         would       render

Watson competent as required by Sell, we review Lucking’s report

and testimony in some detail.

      In    his    report,    Lucking        diagnosed     Watson      with       Delusional

Disorder, Persecutory Type, 1 a rare mental illness characterized

by   “the    presence    of       one   or    more     nonbizarre          delusions      that

persist for at least one month.” 2                  Lucking further reported that

Watson’s     delusions       had    not      been    treated        with    antipsychotic

medication at FMC Butner, and that Watson had refused to accept


      1The experts in this case use the terms “Persecutory Type”
and   “Paranoid   Type”  interchangeably.     For   clarity  and
consistency with the Diagnostic and Statistical Manual of Mental
Disorders, we consistently refer to Watson’s condition as
“Persecutory Type.”
      2A delusion is “nonbizarre” if it involves a situation that
can conceivably occur in real life, such as being followed,
poisoned, infected, conspired against — or, as here, being
recruited to work as a covert operative for a foreign
government.    “Bizarre” delusions, by contrast, are clearly
implausible, not understandable, and not derived from ordinary
life experiences, such as the belief that one’s internal organs
have been removed and replaced by someone else’s organs without
leaving a scar or wound.



                                              8
such treatment.          Lucking believed Watson to be neither gravely

disabled nor a danger to himself or other inmates, as would be

required         to    justify      forcible      medication          under      Harper.

Nevertheless, he recommended that Watson be forcibly medicated

with       the        antipsychotic         risperidone, 3         asserting          that

“antipsychotic         medication      is   substantially       likely      to      render

[Watson] competent to stand trial.”

       In support of his opinion, Lucking asserted that “there is

extensive support in the psychiatric literature that individuals

with the diagnosis of a psychotic illness obtain substantial

reduction        in    their     psychotic      symptoms       when    treated        with

antipsychotic         medication,”       and    that    “a     body    of     evidence”

supports the related proposition that such individuals “can be

restored      to      competency       when     treated        with    antipsychotic

medication.”           Lucking    also      asserted    that    Watson        had    taken

risperidone during his 2009 admission to St. Elizabeth’s, from

which      Lucking      drew     the   “logical        inference      [that      Watson]

responded positively to the use” of that drug.                     However, Lucking

admitted that he did not have the medical records from that




       3The experts in this case use the generic name
“risperidone” and the brand name “Risperdal” interchangeably.
For clarity, we consistently refer to the drug by the generic
name “risperidone.”



                                            9
admission, and later testified that he would have recommended

risperidone even if Watson had never received it before.

       Finally, during a hearing on the government’s request for

forcible medication, Lucking testified that his past experience

as a psychiatrist supported the use of risperidone.                           Lucking

asserted that he had treated approximately ten other patients

suffering     from      Delusional        Disorder         with      antipsychotic

medication,   and     that    he    “believe[d]      all    of    them”     had    been

restored to competency.        Lucking was, however, unable to provide

any further information about the ten other patients, explaining

that he could “not remember details of patients [he] treated

maybe five, six, seven, or eight years ago,” and that it would

in any event be “inappropriate” to share such “treatment [and]

clinical    information”      in     a   public      forum,      “even      with    the

[district court].”

       Lucking’s    opinion    regarding       the   efficacy     of     involuntary

medication was challenged on several grounds by the report of

defense expert and licensed psychologist Dr. James H. Hilkey

(“Hilkey”).        With respect to the academic literature, Hilkey

emphasized that “there is little in the literature referencing

well    controlled,    double-blind           research     studies     as    to    the

efficacy of pharmacological treatment of persons suffering from

Delusional Disorders.”             He also pointed out that the studies

that do exist have consistently shown the Persecutory Type of

                                         10
the disorder — from which Watson suffers — to be the “most

resistant” to treatment.

      With respect to Watson in particular, Hilkey opined that

“[t]he chronic nature of [Watson’s] illness and the fixed, well

established nature of his aberrant thoughts” make his condition

resistant        to      treatment,          whether          pharmacological        or

psychological.          He    expressed          concern   that    the   involuntary

treatment      plan   did    not   adequately       address     Watson’s      “strongly

held beliefs and reported personal experiences with psychotropic

medications,” including “pronounced fears of death,” and opined

that “[f]ailure to compassionately address these fears [would]

only contribute[] to fears of persecution” and thus aggravate

his   condition.         Finally,     Hilkey       indicated      that   it    was   his

“strongly held opinion” that supportive and cognitive behavioral

therapy    would      “increase     the     likelihood      [Watson’s]     competency

could     be    sufficiently        restored,”        given     Watson’s      apparent

“capacity      to     form   a     degree    of     therapeutic      alliance,”      as

demonstrated by his trusting relationship with his attorneys.

                                            B.

      On March 7, 2014, the magistrate judge recommended that

Watson be forcibly medicated in order to restore his competency.

Watson, 2014 WL 1901256, at *1, *4.                        The magistrate judge’s

findings with respect to the first two Sell factors are relevant

to Watson’s arguments on appeal.

                                            11
       With respect to the first Sell factor, the magistrate judge

found “that an important government interest is at stake in the

prosecution of the defendant,” rejecting Watson’s argument that

that     interest       was     mitigated        by     “the     possibility          of    an

affirmative defense of not guilty by reason of insanity.”                                  Id.

at *12, *14-15.           In reaching this conclusion, the magistrate

judge assumed that such a defense could constitute a mitigating

special circumstance, but found that Watson had failed to prove

that the defense was “likely [to] be successful” because he had

not proffered expert testimony to that effect.                        Id. at *15.

       With     respect   to    the     second    Sell       factor,    the    magistrate

judge found that the proposed treatment plan was substantially

likely     to       restore     Watson’s     competency.               To     reach        this

conclusion, the magistrate judge relied entirely on Lucking’s

testimony and report, which, he noted, referenced the academic

literature and the experiences of Lucking’s other patients with

Delusional       Disorder.        Id.      The        magistrate      judge    held        that

Hilkey’s       forensic       evaluation    did        not     “undermine”      Lucking’s

conclusion, solely on the ground that Hilkey’s report nowhere

“directly discredit[ed]” Lucking’s treatment plan.                          Id. at *16.

       On April 29, 2014, the district court issued a brief order

adopting      the    recommendations        and       findings    of    the    magistrate

judge    and     granting      the    government’s           motion    for    involuntary

medication.         Watson, 2014 WL 1901256, at *1, *4.                     The order has

                                            12
been stayed pending resolution of this appeal.                   Order, United

States v. Watson, No. 1:13-cr-366 (E.D. Va. May 27, 2014), ECF

No. 76.



                                        III.

      On appeal, Watson challenges the district court’s findings

with respect to the first and second prongs of Sell.                  Because we

conclude that the district court clearly erred in finding that

the government had met its burden under the second prong of Sell

—   and   in   particular,   its    burden     of   proving,     by   clear   and

convincing evidence, that forcible medication is substantially

likely    to   restore   Watson    to    competence 4   —   we   do   not   decide

whether a possible insanity defense is a special circumstance

that may mitigate the government interest in prosecution, or




      4The dissent objects that this issue is not properly before
us, and that Watson’s argument on appeal is limited to the
district court’s failure to order that the government provide
supportive therapy in addition to forcible medication.         We
respectfully disagree. While it is true that Watson emphasizes
Hilkey’s view that medication “must be combined with supportive
therapy in order to be successful,” he does so only in support
of his ultimate argument: that the only proposed treatment plan
actually before the court “will be unsuccessful,” and that “the
district court’s finding otherwise is clear error.” Watson Br.
26.



                                         13
whether the district court otherwise erred in finding that the

government met its burden under the first prong of Sell. 5

                                          A.

      We have said that the second Sell factor involves factual

determinations subject to clear error review, see White, 620

F.3d at 410, and we recognize that our role is not to second-

guess a district court’s factual findings, see United States v.

Francis, 686 F.3d 265, 273 (4th Cir. 2012).                         We are, however,

charged with ensuring that the district court actually makes the

necessary       findings,   and   that    it        makes    them   pursuant   to    the

proper     legal   standard   —   that        it    asks    and   answers    the   right

questions — in light of the record as a whole.                        See Jiminez v.

Mary Washington Coll., 57 F.3d 369, 379 (4th Cir. 1995) (“We

reverse     a    factual    finding      as        being    clearly   erroneous     if,

‘although there is evidence to support it, the reviewing court

on   the   entire    evidence     is   left         with    the   definite   and    firm

      5In the decision below, the district court assumed that a
possible insanity defense could be considered in the special
circumstances analysis under the first prong of Sell, see
Watson, 2014 WL 1901256, at *2, as have other courts within this
circuit, see, e.g., United States v. Duncan, 968 F. Supp. 2d
753, 765-66 (E.D. Va. 2013); United States v. Rodman, 446
F. Supp. 2d 487, 496-97 (D.S.C. 2006).       There is, however,
division among the courts of appeals on the question.    Compare
United States v. Morrison, 415 F.3d 1180, 1186 (10th Cir. 2005)
(likely insanity defense diminishes government interest in
trial), with United States v. Mikulich, 732 F.3d 692, 699-701
(6th Cir. 2013) (potential insanity defense does not undermine
government interest).



                                          14
conviction that a mistake has been committed.’” (quoting United

States v. United States Gypsum Co., 333 U.S. 364, 395 (1948))).

And in this highly sensitive context, governed by the exacting

clear and convincing standard, it is especially important that a

district court consider and contend with substantial evidence

that would undermine the case for forcible medication, and that

it ensure that the government’s burden actually has been met.

See    id.   (clear      error          may    occur     when       a    district      court

“disregard[s]         substantial         evidence       that       would     militate       a

conclusion      contrary      to    that      reached”    or       otherwise       reaches   a

conclusion      “contrary      to       the    clear     weight         of   the    evidence

considered in light of the entire record”).                         On the basis of our

review of the entire record, we conclude that the district court

clearly erred in finding that the government had met its burden

of proving, by clear and convincing evidence, that the proposed

treatment       is     substantially            likely        to      restore       Watson’s

competency.      We further conclude that on the record before us,

that exacting standard cannot be met.

                                              B.

       Under the second prong of Sell, the government must prove,

by clear and convincing evidence, that involuntary medication

significantly furthers its interests.                    See Chatmon, 718 F.3d at

374.      And    as    part        of   that       showing,     the      government     must

“demonstrat[e] that the proposed treatment plan, as applied to

                                              15
this particular defendant, is ‘substantially likely’ to render

the   defendant      competent     to   stand        trial.”     United      States   v.

Evans, 404 F.3d 227, 242 (4th Cir. 2005) (emphasis in original).

Merely showing a proposed treatment to be “generally effective”

against     the    defendant’s     medical       condition     is    insufficient      to

meet this burden.          Id. at 241-42; see Bush, 585 F.3d at 816

(“[I]n order to satisfy this second factor of the Sell test, the

government must not only show that a treatment plan works on a

defendant’s type of mental disease in general, but that it is

likely to work on this defendant in particular.”) (emphasis in

original); see also United States v. Ruiz-Gaxiola, 623 F.3d 684,

700    (9th   Cir.     2010)   (finding         this    burden      unmet    where    the

government’s “experts rely on generalities and fail to apply

their views to [the defendant’s] condition with specificity”).

Instead, the government must “relate the proposed treatment plan

to    the   individual    defendant’s         particular       medical      condition,”

Evans, 404 F.3d at 242, which requires consideration of factors

specific to the defendant in question, including not only his

medical condition, but also his age and the nature and duration

of his delusions, see id. at 241.

       What is missing from the proceedings below is any finding

assessing     the     likely     success        of   the   government’s        proposed

treatment plan in relation to Watson’s particular condition and

particular        circumstances.        The     district   court      did    find    that

                                           16
“[t]he      record   convincingly    reflects     that    the   government         has

satisfied” the second prong of Sell.               Watson, 2014 WL 1901256,

at *3.       But nothing in the district court’s decision indicates

that it actually considered whether the evidence proffered by

the   government       sufficiently      addressed       Watson’s      particular

medical situation.        Rather, the district court appears to have

concluded that the “substantially likely” requirement had been

met   merely    because   Lucking    testified     that    it   was.         See    id.

(finding that government had shown involuntary medication to be

“substantially likely to render the defendant competent to stand

trial” because “Lucking . . . testified that the treatment plan

he designed for defendant . . . satisfies these requirements”).

And if we go behind the district court’s order to the magistrate

judge’s report and recommendation, the result is no better:                         In

adopting Lucking’s conclusion, the magistrate judge pointed for

support only to Lucking’s reliance on the academic literature

and   his    experience   with    his   own    patients,    see     id.   at       *15,

neither of which bears on Watson’s particular medical condition

or circumstances.

      It is critical that in evaluating the government’s case for

forcible     medication   under     Sell,     courts   engage   in     the    proper

inquiry: not whether a proposed treatment plan is likely to work

in general, but whether it is likely to work as applied to a

particular defendant.         Permitting the government to meet its

                                        17
burden     through        generalized         evidence        alone      would       effectively

allow it to prevail in every case involving the same condition

or course of treatment.                 See Evans, 404 F.3d at 241.                  Because we

are   obligated          to   ensure     that      a   given      case       is    “sufficiently

exceptional         to   warrant        the   extraordinary          measure        of   forcible

medication,” we cannot permit such deference here.                                   White, 620

F.3d at 413; see also Evans, 404 F.3d at 241.

                                                 C.

      In this case, the requirement that the court assess the

efficacy       of    antipsychotics           as   applied        “with      specificity”         to

Watson’s circumstances, Ruiz-Gaxiola, 623 F.3d at 700, is more

than a formality.             The district court’s failure to look beyond

Lucking’s conclusory assertion that the government’s burden had

been met is problematic precisely because there is a near total

absence       of    evidence       in    Lucking’s          report      or    testimony        that

“relate[s] the proposed treatment plan to [Watson’s] particular

medical condition.”                Evans, 404 F.3d at 242.                        This is not a

case,    in    other      words,     where       the    district        court’s      failure      to

properly synthesize or distill the evidence is harmless because

we can see for ourselves that the government has met its burden

under    the       second     Sell      prong.         On   the    contrary:             There   is

virtually          nothing    in     Lucking’s         report      or     testimony        —     the

entirety       of     the     government’s         case      —    that       is     sufficiently

specific to Watson that it could satisfy the government’s burden

                                                 18
of showing that Watson is substantially likely to be rendered

competent by forcible medication, let alone meet the rigorous

clear and convincing standard. 6

        Lucking, for example, argues that risperidone is likely to

restore Watson’s competency because “there is extensive support

in   the      psychiatric      literature      that      individuals     with     the

diagnosis of a psychotic illness obtain substantial reduction in

their       psychotic    symptoms     when     treated       with   antipsychotic

medication.”        In   other     words,    he    asserts:    (1) antipsychotic

medication effectively treats psychotic symptoms; (2) Watson has

psychotic symptoms; (3) therefore, antipsychotic medication will

effectively      treat   his   psychotic      symptoms.       See   also   J.A.    75

(Lucking      testifying    that     Watson       “has   a   psychotic     symptom;

therefore, he needs treatment with an antipsychotic”).                     This is

exactly the kind of nonspecific, syllogistic reasoning we deemed

insufficient in Evans, see 404 F.3d at 241, and it has not

become any more persuasive over time.




        6
       The dissent takes the position that the only question
before us is whether the district court properly synthesized the
record evidence, and not whether that evidence supports the
district court’s holding.   In our view, however, those issues
are so closely interrelated in the context of this case that we
are justified in addressing them together. As Watson argues on
appeal, the district court’s synthesis errors matter precisely
because the evidence that the proposed treatment plan will
succeed is so thin.



                                        19
      The insubstantiality of that reasoning is exacerbated here

by the weaknesses in the studies actually cited in Lucking’s

report.      For    one   thing,   many      of    those     studies    concern    the

efficacy of antipsychotics in general, rather than risperidone

in particular, against psychotic illness in general, rather than

Delusional Disorder in particular.                 Cf. White, 620 F.3d at 421

(discounting        probative      value      of      doctor’s         “professional

experience    and    expertise,”    where         doctor’s    “area    of   expertise

[was] schizophrenia, not delusional disorders”).                       Because they

do not address the specifics of either the proposed treatment

plan or Watson’s condition, these studies cannot satisfy the

government’s burden of “relat[ing] the proposed treatment plan

to   the   individual     defendant’s      particular        medical     condition.”

Evans, 404 F.3d at 242.

      Moreover, the cited studies that do specifically address

Delusional Disorder are equivocal at best.                     One study, Lucking

reports, finds a positive response to medication in fewer than

half of the cases reviewed, while another places the positive

response rate at less than 15%.              Still another study identifies

Watson’s particular condition — the Persecutory Type — as having

an especially “poor response rate (50% improvement rate with no

reported    complete      recovery).”        The     one     study    cited   by   the

government that does unequivocally support the involuntary use

of   antipsychotic        medication    to        restore     the     competency   of

                                        20
defendants with the Persecutory Type of Delusional Disorder is,

by its own terms, vulnerable to “bias[] in favor of finding a

positive response to treatment” due to its experimental design.

Byron        L.   Herbel      &      Hans       Stelmach,        Involuntary     Medication

Treatment         for    Competency         Restoration       of    22     Defendants   With

Delusional        Disorder,         35    J.    Am.   Acad.      Psychiatry     L.   47,    58

(2007).

       This is not to say that these and other studies mentioned

in Lucking’s report are of no evidentiary weight at all.                                They

fairly       could      be    understood         to   provide       some    evidence    that

antipsychotic           medication        may    be   effective      against     Delusional

Disorder in general.                But standing alone, without explanation or

analysis applying their findings to Watson as an individual, we

do     not    believe        they    can       provide   the       requisite    clear      and

convincing proof that the forcible injection of risperidone is

substantially likely to succeed in treating Watson’s specific

persecutory delusions.                   Cf. Evans, 404 F.3d at 241-42 (finding

government report inadequate to prove that proposed treatment

plan     was       “substantially              likely”      to     restore      defendant’s

competency where it stated only that “such medication is the

‘primary’ way to treat Schizophrenia” and “nowhere addressed”

defendant’s individual concerns).

       Lucking’s testimony regarding his past experience treating

patients with Delusional Disorder also fails to take account of

                                                 21
Watson’s       particular           condition        and     circumstances.             The

experiences of similar patients treated with antipsychotics of

course    could      be    relevant    to    Watson       specifically      —   but    here,

Lucking was unable to provide any information demonstrating that

his patients in fact were similarly situated to Watson.                                There

is, for instance, no evidence that they suffered from the same

type     of   Delusional          Disorder,        that    they   received       the   same

medication, that the medication was administered involuntarily,

or that their delusions were meaningfully similar in nature and

persistence.         Indeed, Lucking indicated that he was unable to

recall any information about these patients, testifying that he

could “not remember details of patients [he] treated maybe five,

six, seven, or eight years ago,” and that it would, in any case,

be     “inappropriate        to     share     other       people’s     treatment       [and]

clinical information,” “even with the [district court].”                                 But

without       information         relating     his        patients’    experiences       to

Watson’s own circumstances, that data set is just another form

of generalized evidence.

       Nor do we think this gap can be filled with evidence that

is particularized to Watson but goes to an entirely different

question:      not        whether    forcible        medication       is   substantially

likely to render Watson competent to stand trial, but whether it

is     substantially        unlikely     to     have       side   effects       that   will

interfere with his ability to assist counsel.                              Those are two

                                              22
separate and independent showings, each of which the government

must make under Sell’s second prong, 539 U.S. at 181, by clear

and convincing evidence, see Bush, 585 F.3d at 815; one cannot

substitute for the other.                 And as we have held, both showings

must    be   made    “with      respect    to       the    particular    defendant     [the

government]       seeks    to    medicate       involuntarily,”          id.   at    815-16,

with the same “exacting focus on the personal characteristics of

the     individual        defendant        and        the     particular       drugs     the

[g]overnment seeks to administer,” id. at 816 (quoting United

States v. Baldovinos, 434 F.3d 233, 240 n.5 (4th Cir. 2006)).

In    this   case,    however,       while      the       government    does   provide   an

individualized            analysis        of        Watson’s       vulnerability         to

counterproductive          side    effects          from     risperidone,      that    only

highlights     its     failure       to    provide          comparable    individualized

analysis     of     the    likelihood          that       risperidone     will      actually

succeed in rendering Watson competent.

       Finally, Lucking himself undermines the one section of his

report that purports to explain why risperidone was recommended

for Watson in particular.             In that section, Lucking asserts that

risperidone is likely to be effective because Watson was treated

with risperidone during his 2009 admission to St. Elizabeth’s.

The report itself qualifies this assertion in at least two ways:

It admits that Lucking had not reviewed the hospital records

from that admission, and also that the mere fact that Watson

                                               23
“was treated and released” by St. Elizabeth’s constitutes only

“indirect      evidence          of       a    positive       response     to    antipsychotic

medication.”         More importantly, the assertion was deprived of

significance during an April 30, 2013, hearing on the motion for

involuntary medication, when Lucking admitted that he would have

recommended risperidone even if he learned that Watson had never

taken    it    before.       As        Lucking        made    clear,     his    recommendation

rested not on any individualized assessment of Watson, but on

the belief that “antipsychotics are the treatment of choice for

psychotic       symptoms”             —       the     same     nonspecific,        syllogistic

reasoning we have previously rejected.                             See Evans, 404 F.3d at

241.

                                                     D.

       We are concerned here not only with the deficiencies in the

government’s affirmative case for forcible medication, but also

with    the    substantial            questions           raised   about   the    government’s

proposed treatment plan by Hilkey — questions never addressed by

the magistrate judge or district court.                             As we have recognized,

careful scrutiny by courts of proposed forcible administration

of antipsychotics is necessary to minimize the risk of error

where such important liberty interests are at stake.                                See Bush,

585     F.3d    at        814.                That    scrutiny       necessarily      requires

consideration        of    any        substantial           and    credible     evidence   that



                                                     24
undermines the case for forcible medication.                              But there is no

indication that such consideration occurred here.

      The magistrate judge and district court did not examine and

then reject the concerns raised by Hilkey in his report, making

subsidiary     factual         determinations        to     which    we    would    owe   the

normal deference.              Instead, they summarily disregarded Hilkey’s

report in its entirety, solely because Hilkey failed to state

expressly that the proposed treatment plan would not succeed.

Watson,      2014       WL    1901256,   at    *3,     *16     (“As       the    Report   and

Recommendation correctly notes, defendant’s medical expert, Dr.

Hilkey, did not state in his report that Dr. Lucking’s plan will

not succeed.”).              But it is the government’s burden to prove, by

clear and convincing evidence, that its proposed treatment plan

is “substantially likely to render [Watson] competent to stand

trial,” White, 620 F.3d at 410 (quoting Sell, 539 U.S. at 181),

and not Watson’s burden to prove that it is not.

      And     by    perfunctorily        disregarding          Hilkey’s         report,   the

district     court       here     excluded     from       consideration         significant

evidence that does indeed call into question whether forcible

medication         is    likely     to     “succeed”         by     restoring      Watson’s

competency.         For example, Hilkey disputes Lucking’s reading of

the scientific literature, asserting that “little is known about

[Delusional        Disorder]      compared     to     other       psychotic     disorders,”

and   that    what      research    does      exist    as    to     Delusional     Disorder

                                              25
indicates that individuals suffering from the Persecutory Type

are “most resistant” to treatment.                Hilkey’s objections to the

scientific literature on the use of antipsychotic medication to

treat Delusional Disorder are particularly concerning in light

of Lucking’s heavy reliance on this research in his own report

and the magistrate judge’s second-order reliance on the same

research.     Yet these concerns are barely acknowledged, let alone

adequately addressed, in the district court order.

      The    decisions       below     also      failed      to    give      adequate

consideration     to    Hilkey’s       concern     that    Watson’s        particular

persecutory    delusions      are    especially     unlikely       to   respond     to

treatment.    Hilkey opines that: (1) due to “[t]he chronic nature

of [Watson’s] illness and the fixed, well established nature of

his   aberrant    thoughts,”     Watson’s        condition    is    likely     to   be

“resistant to change,” and (2) without supportive therapy to

address Watson’s “strongly held beliefs and reported personal

experiences      with    psychotropic         medications,”        which     “include

pronounced    fears     of   death,”    involuntary       treatment     will    “only

contribute[] to [Watson’s] fears of persecution.”                          Those are

exactly the kind of individualized concerns that we have said

must be addressed by the government in order to meet its burden

of proving that the proposed treatment is substantially likely

to restore the defendant’s competency, see Evans, 404 F.3d at

241   (finding     second-factor         burden     unmet     where        government

                                         26
“nowhere addressed [the defense expert’s] concern that Evans’s

delusions     of      governmental      conspiracies       that    ha[d]    persisted

longer    than     40     years   [would]      resist     involuntary       medication

precisely because the government administers the medication”) —

and yet they were summarily dismissed by the district court, see

Watson, 2014 WL 1901256, at *2-3, *16.

                                          E.

       In sum, the district court in this case did not undertake

the searching and individualized assessment of Watson’s likely

susceptibility to forcible medication that is required by our

case law.        It took the government at its word when it argued

that the requirements of Sell had been met, without considering

whether    the     government     had   produced        evidence    “relat[ing]    the

proposed treatment plan to the individual defendant’s particular

medical condition.”           Evans, 404 F.3d at 242.               This failure to

apply the proper legal standard exacerbated the district court’s

apparent failure to consider the concerns raised by Hilkey’s

report, which did relate to Watson specifically.                       See Chatmon,

718 F.3d at 376 (finding clear error where the district court

failed to “offer some reason why it did not” credit contrary

arguments).        Perhaps as a result of these errors of synthesis,

the district court overlooked the issue lying at the heart of

this     case:     the    meagerness      of     the    evidence     that    forcible

treatment        is      substantially         likely     to      restore     Watson’s

                                          27
competency, when his particular medical situation is taken into

account — especially as evaluated under the requisite clear and

convincing standard of proof.

      Any one of these problems would raise questions under the

clear error standard of review, whether for misapprehension of

the   relevant      legal        standard,        failure      to    consider     contrary

evidence, or reaching a conclusion against the clear weight of

the record.      See Jiminez, 57 F.3d at 379.                       In this case, it is

enough   to   say    that        cumulatively,          they    leave    us     with   “the

definite and firm conviction that a mistake has been committed,”

Francis, 686 F.3d at 273 (quoting United States v. Hall, 664

F.3d 456, 462 (4th Cir. 2012)), in a context where the costs of

error are exceedingly high.               We therefore hold that the district

court clearly erred in finding that the government has met its

burden   of   proving       by    clear    and      convincing        evidence    —    i.e.,

evidence of a sufficient weight to produce a “firm belief or

conviction,      without         hesitancy,        as    to     the     truth     of    the

allegations sought to be established,” Heyer, 740 F.3d at 292 —

“that the proposed treatment plan, as applied to this particular

defendant,    is    ‘substantially         likely’       to    render    the     defendant

competent to stand trial,” Evans, 404 F.3d at 242 (emphasis in

original).

      We further conclude that this is the rare case in which a

remand is inappropriate because “the record permits only one

                                             28
resolution of the factual issue”: that this burden cannot be

met.     Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982); see,

e.g., Ruiz-Gaxiola, 623 F.3d at 696 (declining to remand where

“[t]here    is   no   explanation         that    the    court   could    provide     on

remand and no findings consistent with the record before us that

would    allow   us   to    conclude      that    the    government      has   met   its

burden under the second Sell factor”).                        In Bush, 585 F.3d at

817, 818, and Evans, 404 F.3d at 242-43, we remanded rather than

reversing    after     finding      the    record       insufficient      to   support

forced     medication       under    Sell.         But     in    those      cases,    we

articulated new legal standards, Bush, 585 F.3d at 817; Evans,

404 F.3d at 241-42, and our remands, at least in part, afforded

the parties their first opportunities to present evidence and

make arguments under those standards.                     The standard we apply

today, by contrast, was established over ten years ago in Evans,

and we believe that the government has had ample opportunity to

assemble and defend the evidence necessary to meet it.

       Because the government must prove that it has satisfied

each of the four Sell prongs before it may forcibly medicate a

defendant, we need not reach Watson’s remaining arguments to

conclude     that     the    government          has    not     justified      forcible

medication in this case.




                                           29
                          IV.

Accordingly, the order of the district court is

                                                  REVERSED.




                          30
TRAXLER, Chief Judge, dissenting:

       The    district         court    granted     the    government’s         petition    to

involuntarily        medicate          John    Watson     in     order   to     restore    his

competency to stand trial.                    The majority reverses that order,

concluding that the government’s evidence was insufficient to

prove that the proposed treatment plan was substantially likely

to render Watson competent.                   In his appeal, however, Watson does

not    challenge         the    sufficiency         of    the    government’s        evidence

establishing the necessity of medication.                             Instead, he argues

that    the       district      court     erred      by    not    requiring      supportive

therapy in addition to medication, which Watson contends would

increase the likelihood that he would be restored to competency.

This court generally does not address issues not raised by the

parties, and I believe it inappropriate in this case for the

majority to reverse the district court on an issue raised sua

sponte, particularly without giving the government notice of the

change in issues or an opportunity to address it.                             If the issue

were properly before us, however, I would find the evidence in

the record sufficient to support the district court’s order.

       As    to    the    issues       actually     raised       by   Watson,    I   conclude

that, as to one narrow issue, the district court failed to make

the necessary findings.                However, I believe the proper course in

this    circumstance           is   to    vacate         and    remand    for    additional



                                               31
findings,     not      simply    reverse        the   district       court     outright.

Accordingly, I respectfully dissent.

                                           I.

     When seeking to involuntarily medicate a defendant for the

purpose     of    restoring      his     competency         to     stand    trial,        the

government must establish four factors by clear and convincing

evidence.        See   Sell     v.   United     States,      539    U.S.    166,    180-81

(2003); United States v. Bush, 585 F.3d 806, 813-14 (4th Cir.

2009).      First,        the   government        must      prove    that     “important

governmental interests are at stake” that are not mitigated by

“[s]pecial circumstances.”             Sell, 539 U.S. at 180.               Second, the

government must establish that forced medication “significantly

further[s]”         the    government’s          interests          because        it      is

“substantially likely to render the defendant competent to stand

trial” and “substantially unlikely” to have side effects that

would undermine the fairness of a trial.                    Id. at 181.       Third, it

must show that forced medication is “necessary to further” the

government’s        interests        because     “less       intrusive       means        are

unlikely    to    achieve       substantially         the    same    results.”            Id.

Fourth, the government must prove that the administration of the

requested drug is “medically appropriate, i.e., in the patient’s

best medical interest in light of his medical condition.”                           Id.

     To carry its burden under Sell, the government must submit

a proposed treatment plan specifying the particular drug and

                                           32
dosage it intends to administer.              See United States v. Evans,

404 F.3d 227, 241 (4th Cir. 2005).                 For the treatment plan to

satisfy the requirements of the second factor, the government

must show that the plan relates

      to the individual defendant’s particular medical
      condition.       In   other   words,   the    government,
      considering all of the particular characteristics of
      the   individual    defendant   relevant   to    such   a
      determination, must first show that the treatment plan
      will significantly further its interests.     It must do
      so by demonstrating that the proposed treatment plan,
      as   applied   to    this   particular   defendant,    is
      substantially likely to render the defendant competent
      to stand trial and substantially unlikely to produce
      side effects so significant as to interfere with the
      defendant’s ability to assist counsel in preparing a
      defense.

Id.   at    242   (first    emphasis     added;      footnote   and    internal

quotation marks omitted).

      The question posed by the first Sell factor is a legal one,

and we therefore review the district court’s ultimate answer de

novo and any subsidiary factual determinations for clear error.

The remaining three factors pose factual questions subject to

clear error review.         See United States v. White, 620 F.3d 401,

410 (4th Cir. 2010).

      Clear error, of course, is a very deferential standard.                 “A

court reviewing for clear error may not reverse a lower court’s

finding of fact simply because it would have decided the case

differently.      Rather, a reviewing court must ask whether, on the

entire     evidence,   it    is   left      with    the   definite    and   firm

                                       33
conviction that a mistake has been committed.”                   United States v.

Wooden, 693 F.3d 440, 451 (4th Cir. 2012) (internal quotation

marks and alteration omitted).             “If the district court’s account

of the evidence is plausible in light of the record viewed in

its   entirety,   the   court   of    appeals       may    not   reverse    it   even

though convinced that had it been sitting as the trier of fact,

it would have weighed the evidence differently.”                     Anderson v.

City of Bessemer City, 470 U.S. 564, 573–74 (1985).                        “In cases

in which a district court’s factual findings turn on assessments

of witness credibility or the weighing of conflicting evidence

during a bench trial, such findings are entitled to even greater

deference.”    Helton v. AT & T, Inc., 709 F.3d 343, 350 (4th Cir.

2013).

                                          II.

      Given the fact-bound nature of this appeal, I will first

summarize the primary evidence before the district court:                         the

report and testimony of Dr. Robert Lucking, the government’s

expert witness and staff psychiatrist at the Federal Medical

Center in Butner, North Carolina, the facility where Watson is

housed;   a   study   by   Byron     L.    Herbel    and    Hans   Stelmach      (the

“Herbel Study”) 1 that was relied upon by Lucking; and the report


      1 See Byron L. Herbel & Hans Stelmach, Involuntary
Medication Treatment for Competency Restoration of 22 Defendants
With Delusional Disorder, 35 J. Am. Acad. Psychiatry & L. 47


                                          34
of    Dr.    James      Hilkey,     a    psychologist          who   served       as    Watson’s

expert witness.

                                                  A.

       Dr.    Lucking      submitted          a    report     detailing      his       views   and

testified at the two Sell hearings conducted by the magistrate

judge.       In his report, Lucking diagnosed Watson as suffering

from delusional disorder, paranoid (or persecutory) type and a

“substantial thought disorder.”                        J.A. 357.         Lucking described

the nature of delusional disorder and stated his opinion that

Watson      was    incompetent          to    stand      trial     because       his    “paranoid

delusional beliefs” prevented Watson from “understand[ing] the

nature      and    consequences          of    the     proceedings       against        him”   and

prevented         him   from    assisting          his    attorney.         J.A.       359,    360.

Lucking      stated       his     opinion         that      there    was     a    “substantial

probability        Mr.    Watson’s       competency          can    be   restored”        through

treatment with an antipsychotic medication.                          J.A. 376.

       Lucking          explained       that        antipsychotic          medications         can

restore the competency of those with active psychotic illnesses,

and    he    summarized         various           studies     supporting         this     general

principle.         As to delusional disorder more specifically, Lucking



(2007). The Herbel Study was submitted to the district court as
part of Watson’s opposition to the government’s petition.




                                                  35
noted in his report that “[p]ast opinion of the treatment of

delusional       disorder      with         antipsychotic         medication     was

pessimistic.      The prevailing opinion was that only a fraction of

individuals with delusional disorder would respond to treatment

(approximately     10%).”          J.A.   371    (emphasis       added).     Lucking

explained,     however,     that    “more      recent   literature       indicates    a

significantly better response rate,” J.A. 372, and he summarized

those more recent studies, which included several with rates of

successful      treatment     (i.e.,      full     or      partial   remission       of

symptoms) 2 exceeding 75%.           Lucking acknowledged that there are

“no    double-blind    placebo-controlled             or    non-blinded     placebo-

controlled trials in the literature related to the treatment of

delusional      disorder,”    and     that      the     more    recent     literature

involved case studies, which yield “lower quality” evidence than

the evidence obtained through placebo-controlled trials.                         J.A.

372.       These shortcomings notwithstanding, Lucking believed the

more recent studies “indicate delusional disorder can be treated

effectively with antipsychotic medication.”                    J.A. 374.




       2
       Lucking explained that “it is generally psychotic symptoms
which render an individual incompetent,” and that “the fewer
psychotic symptoms present, and the less intense the symptoms,
the more likely that individual is to be competent. Therefore,
even a partial response to antipsychotic medication can result
in a restoration of competency.” J.A. 370.



                                          36
     The    report       explained    the      difference         between    first-     and

second-generation         antipsychotic          drugs    and     noted    that    second-

generation antipsychotics “are considered to be the first line

treatment for psychotic conditions due to [their] less onerous

side effect profile.”            J.A. 376.       The report discussed the three

antipsychotic           medications        that          could      be      administered

involuntarily and noted that risperidone is the only second-

generation antipsychotic that could practicably be administered

involuntarily.          Lucking stated in the report that Watson had

previously       been    admitted    to    a     hospital    in     Washington,       D.C.,

where he was treated with risperidone.                       Lucking inferred from

the fact that Watson was released from the hospital that he

responded positively to the drug, and his treatment plan for

Watson recommended the use of risperidone.

     Lucking’s          report       stated        that      treatment        with      an

antipsychotic          would   not    produce        side        effects    that      would

interfere with Watson’s ability to assist his attorney; that

Watson     had    no    underlying        disease    that        would     preclude    the

standard treatment of any side effects or make him susceptible

to particular side effects; that risperidone would not interact

with any of the other medications prescribed for Watson; and

that Watson had no “underlying medical illness or conditions

which would preclude or be worsened by the use of antipsychotic

medication.”       J.A. 375.

                                            37
      In    the    report,        Lucking      explained    that    no    less-intrusive

treatments were likely to achieve the same results as treatment

with risperidone.            While acknowledging that psychotherapy can be

beneficial        as    an      adjunct    to    treatment     with      antipsychotics,

Lucking noted that there is “no evidence that psychotherapeutic

techniques alone are effective alternatives for treatment with

antipsychotic agents.”              J.A. 375 (emphasis added).              Lucking also

indicated that therapy would not succeed in this case because

Watson does not understand that he has a mental illness, does

not believe he needs treatment, and would not participate in any

form of therapy.

      During the Sell hearings held before the magistrate judge,

Lucking testified about the matters set out in his report and

reiterated his views that Watson’s delusional disorder rendered

him   incompetent          to    stand    trial      and   that    treatment      with   an

antipsychotic          medication        was    substantially      likely    to   restore

Watson’s competency.              Lucking also testified that he had treated

“[o]n      an    involuntary        basis”       approximately        ten    delusional-

disorder        patients     with    antipsychotic         medication,      all   of   them

successfully. 3         J.A. 32.      Lucking’s testimony also elaborated on


      3 The majority questions whether Lucking’s testimony
establishes that the ten patients were treated involuntarily.
In my view, it clearly does. See J.A. 32 (“Q. How many patients
suffering from delusional disorder have you treated with
antipsychotic medication? A. On an involuntary basis, it’s not


                                                38
the position expressed in the report that therapy would not be

helpful    for    Watson.      Lucking      explained   that     because   thought

disorders       and    delusions     respond     positively    to   antipsychotic

medications but are not helped by therapy, he did not believe

therapy would be effective to restore Watson’s competency to

stand trial.

       Although Lucking’s report recommended risperidone because

Watson    had     previously       been    treated   with   it   and   apparently

responded positively to it, Lucking testified at the hearing

that he would recommend risperidone even if Watson had never

taken the drug.         As Lucking explained,

       [t]he reason the risperidone was chosen is because we
       are very limited.    The fact that he had received it
       before is a fraction of the reason for choosing that
       medication.   That medication is chosen, one, because
       it’s appropriate to treat his delusional disorder;
       two, the side effects are more tolerable than ones
       from the 1st generation; the medicine is effective;
       and I use it a lot, and I get [a] good response [to]
       it. The fact that he had been on it is not the main
       reason I chose it for the treatment plan.

J.A.     64-65;       see   also    J.A.    76    (“[C]linically,      I   believe

[risperidone] is the best choice for treatment at this point in

time for Mr. Watson.”).




a lot of them because many of them – it’s a rather rare disorder
that you don’t see very often. So probably somewhere around ten
patients over the course of my career here I've treated with
antipsychotics.” (emphasis added)).



                                           39
                                                B.

       Dr.       James     Hilkey,       Watson’s    expert    witness,       prepared     a

report after interviewing Watson for nearly ten hours over the

course of four separate interviews.                      Hilkey agreed that Watson

was suffering from delusional disorder, persecutory type, and

that Watson was incompetent to stand trial.

       Hilkey’s report confirmed that Watson had been previously

treated with risperidone during an inpatient hospital stay.                               The

hospital records reviewed by Hilkey noted that Watson had an

adverse reaction to higher dosages of lithium but mentioned no

adverse      reaction       to     the    risperidone.        Watson,    however,       told

Hilkey       that     he     was     “terrified”      of      the    side     effects      of

antipsychotic medications and that he had “severe reactions” to

the single dose of risperidone he took under court order.                               J.A.

381.        In    Hilkey’s       view,    Watson’s    fears    about    the    medication

“interfaced with his conspiratorial belief system.”                          Id.

       As    to     treatment      with    antipsychotics,          Hilkey   stated     that

“pharmacological           treatment       of   Delusional      Disorders      [is]     less

efficacious         than    with     typical     psychotic      disorder[s]        such    as

Schizophrenia.”            Id.      Hilkey noted the “paucity of controlled,

double-blind studies on treatment of individuals with delusional

disorders,” id., and observed that the “existing studies” show

that the persecutory type of the delusional disorder is the most

resistant to treatment, J.A. 382.

                                                40
       Hilkey    had      “some     question         about      the     efficacy       of

pharmacological        treatment   with    Mr.       Watson,”    J.A.    383,    noting

that   “[t]he    chronic     nature   of       Mr.   Watson’s      illness      and   the

fixed, well established nature of his aberrant thoughts make

response    to        treatment    (pharmacological          and       psychological)

resistant to change,” J.A. 383.                However, Hilkey never directly

stated an opinion on the likely success of the treatment plan

proposed by Lucking.          Hilkey instead focused on the need for

“[s]upportive therapy,” which “has been shown to be an effective

treatment.”      J.A. 382.    As Hilkey explained,

       [t]he general goals of supportive therapy are to
       facilitate the treatment adherence and develop a
       therapeutic alliance, to provide education about the
       disorder, to improve social skills (i.e. not talking
       about delusional systems in social places) and to
       manage    behavioral    and   psychological  problems
       associated with the delusions.       This is a slow
       process; failure to offer this type of supportive
       treatment in lieu of more aggressive therapy only
       reinforces the established fears that characterize
       persecutory delusional disorders.

J.A. 382-83 (footnote omitted).                Given Watson’s “strongly held

beliefs    and    reported    personal         experiences      with     psychotropic

medications      to     include    pronounced        fears   of       death,”    Hilkey

believed that “any treatment approach be it pharmacological or

psychological must be offered in a supportive manner designed to

mitigate the fears of the individual being treated.                       Failure to

compassionately address these fears only contributes to fears of

persecution.” J.A. 383.           In Hilkey’s view, Watson’s relationship

                                          41
with his attorneys showed his ability to form some degree of the

“therapeutic       alliance”     required       for    therapy      to    succeed,       and

Hilkey     “strongly       believed”      that     supportive        therapy        “could

increase    the    likelihood      his    competency        could    be    sufficiently

restored.”    J.A. 384.

                                           C.

     The Herbel Study reported findings from an evaluation of

the case files of twenty-two men involuntarily medicated at FMC-

Butner, the same facility where Watson is housed and Dr. Lucking

works.     Of the twenty-two cases studied, sixteen of the patients

suffered    from    delusional         disorder,      persecutory        type;   one     had

delusional     disorder,        grandiose       type;       and    five     were    mixed

persecutory       and   grandiose       type.      Overall,        seventeen       of    the

twenty-two patients (77%) were reported restored to competency.

And of the sixteen patients diagnosed with delusional disorder,

persecutory       type,     eleven      (69%)    were       reported       restored      to

competency.        Of   the     five    patients      who   were    not    restored       to

competency,       one     was   mixed     type     and      the    other     four       were

persecutory type.

     The information reviewed was sufficient in nineteen cases

for the authors of the Herbel Study to determine how long before

treatment the symptoms had begun.                The symptoms had been present

for five years or less for nine patients, seven of whom were

restored to competency.           Six patients had had symptoms for seven

                                           42
to ten years, and all six of those patients were restored to

competency.             Of the four patients who were symptomatic for a

much longer period of time (thirteen to twenty-four years), only

one was restored to competency. 4

       The study reported that seven patients were restored to

competency within six weeks of beginning treatment, but that the

other ten who were restored to competency did not shows signs of

improvement until undergoing at least three months of continuous

treatment, and that some of the patients required five months of

treatment         before      regaining       competency.          The     authors    thus

recommended treatment trials of at least four months, and noted

that       many     previous        studies    involved         significantly      shorter

medication trials.              In the authors’ view, the too-short duration

of   medication          in   the   previous        studies   provided     a     “plausible

explanation” for the incorrect “conventional wisdom that these

patients          are     refractory      to        treatment     with     antipsychotic

medication.”             J.A.    147;    see    also     J.A.     141    (describing    as

“empirically            unsupported”     the    opinion         asserted    in     forensic

psychiatric literature that “Delusional Disorder is notoriously

treatment resistant”).



       4
       The evidence in the record establishes that Watson had
been suffering from delusions since 2008 or 2009.      Thus, when
the district court issued its order in April 2014, Watson had
been suffering from the disorder for five to six years.



                                               43
      The authors noted that some experts have expressed concern

that patients whose core delusion involves a belief that they

are   victims    of    a    governmental       conspiracy        were    not    likely    to

respond to forced medication “‘precisely because the government

administers the medication.’”                J.A. 149 (quoting United States

v. Evans, 404 F.3d 227, 241 (4th Cir. 2005)).                          As to the twenty-

two   cases     studied,         sixteen     had        delusions      of    governmental

persecution, eleven of whom (65%) were restored to competency;

the five patients who were not restored to competency all had

such delusions.            In light of that data, the authors concluded

that “the presence of delusions involving themes of persecution

by    the   same       government       that       is     implementing         involuntary

medication      does       not     appear   to     be     a     useful      predictor    of

nonresponse to treatment.”             J.A. 149.

      The   authors        noted    that    their       study    was    subject    to    the

“usual limitations” inherent in “retrospective inpatient chart

review,”      including          the    “lack       of        standardized        clinical

assessments with rating scales and diagnostic instruments, as

well as lack of interrater reliability studies.”                            Id.    Because

of those limitations,

      some patients may have been misdiagnosed and wrongly
      included or excluded from this study population.
      Standard research methods to reduce bias, such as
      random assortment to assigned treatment groups, the
      use of a placebo control group, and blinded outcome
      measures, were not possible in this study.   Without
      these   safeguards, the  opinions  of  the  forensic

                                            44
      examiners may have been biased in favor of finding a
      positive response to treatment.

J.A. 149-50.     The authors, however, also pointed out a strength

of the study:

      [T]he patient cohort was selected in a real-world
      manner by criminal prosecution, after which they were
      assessed and involuntarily treated in a real-world
      manner at a forensic mental health facility. The main
      contribution of this study was the observation of
      treatment   response   in   patients    with   delusional
      disorder who, in contrast to the usual protocols in
      community research studies, were not permitted to drop
      out of treatment.     That 10 of the 17 patients who
      responded    to     treatment     required     continuous
      antipsychotic treatment for at least three months, and
      some up to five months, was unexpected.       This result
      provides a plausible explanation for the presumed
      refractory nature of delusional disorder symptoms.
      The real obstacle to a positive treatment response in
      delusional   disorder   may   not    be   the   intrinsic
      biological features of the illness, but may instead be
      the difficulties in convincing these patients to
      adhere to an adequate trial of medication.

J.A. 150 (emphasis added).

                                 III.

      When   considering     whether     the     government’s    proposed

treatment plan was “substantially likely to render the defendant

competent to stand trial,” Sell, 539 U.S. at 181, the district

court concluded that Dr. Hilkey strongly recommended supportive

therapy but that he never opined that medication alone would not

restore Watson’s competency.          On appeal, Watson contends that

the   district   court’s   analysis    reflects    a   clearly   erroneous

understanding of Hilkey’s testimony.           See Brief of Appellant at



                                  45
2 (“[T]he district court clearly err[ed] by misunderstanding the

opinion of the defense expert about the necessity of holistic

treatment.”); id. at 25 (“The district court’s misunderstanding

of    Dr.     Hilkey’s       conclusions       constitutes     clear      error.”).

Acknowledging      that      Hilkey    never     directly      stated     that   the

proposed treatment plan would not work, Watson contends that

when Hilkey’s report is considered in its entirety, its meaning

is clear:      “Dr. Hilkey does not disagree with Dr. Lucking that

Mr. Watson should be medicated.                 To the contrary, Dr. Hilkey

agrees that medication is necessary, but it must be combined

with supportive therapy in order to be successful.”                       Brief of

Appellant at 24.           Watson thus argues the district court clearly

erred by misinterpreting Hilkey’s report and by not requiring

the   government      to    provide   supportive     therapy    as   part   of   the

treatment plan.

      Rather than focusing on the need for supportive therapy,

however, the majority reverses the district court’s order after

concluding     that    the     government’s     evidence     was   insufficiently

related to Watson himself and his particular medical condition,

and    that      the       government’s        “generalized”       evidence      was

insufficient     to    carry    its   burden    of   proof   under      Sell.    See

Majority Op. at 2 (“[T]he government has not met its burden of

proving that involuntary medication is substantially likely to

restore Watson’s competency . . . .”); id. at 17-18 (“Permitting

                                          46
the government to meet its burden through generalized evidence

alone       would    effectively             allow    it    to   prevail      in   every     case

involving the same condition or course of treatment.”).

       A challenge to the overall sufficiency of the evidence,

however, is very different from a challenge to the sufficiency

of    the     district         court’s        distillation       of     the   evidence.        A

challenge to the sufficiency of the evidence asks whether there

is any plausible view of the evidence that supports the district

court’s      decision.           See     Anderson,         470   U.S.   at    573-74;   United

States v. Springer, 715 F.3d 535, 545 (4th Cir. 2013); see also

VICI Racing, LLC v. T-Mobile USA, Inc., 763 F.3d 273, 283 (3d

Cir. 2014) (“A finding of fact is clearly erroneous when it is

completely devoid of minimum evidentiary support displaying some

hue    of    credibility         or     bears    no    rational       relationship      to   the

supportive           evidentiary             data.”        (internal      quotation         marks

omitted)).          A challenge to sufficiency of the district court’s

distillation of the evidence, however, asks whether the district

court as factfinder properly “synthesize[d] the evidence in a

manner that accounts for conflicting evidence or the gaps in a

party’s evidentiary presentation.”                           Doe v. Menefee, 391 F.3d

147,    164    (2d        Cir.       2004)    (Sotomayor,        Circuit      Judge);   accord

Miller v. Mercy Hosp., Inc., 720 F.2d 356, 361 (4th Cir. 1983)

(explaining that clear error may be found where “the findings

under       review    .    .     .    were     made    without     properly        taking    into

                                                 47
account substantial evidence to the contrary”).                          An insufficient

distillation of the evidence is an error that can be corrected

by the district court, through an order on remand that considers

all   evidence        and       properly    accounts      for    contrary        evidence.

Insufficient evidence, by contrast, cannot be corrected by the

district        court      --     insufficient      evidence        is     insufficient,

regardless of the thoroughness of the order evaluating it.

      In    this      case,       Watson    simply     does      not     challenge       the

sufficiency of the government’s evidence.                     Watson does not argue

on appeal that the government’s evidence, standing alone, was

insufficient         to    satisfy    the   Sell     requirements,         nor    does   he

contend     that     the    government’s       evidence       was   not     sufficiently

individualized to him and his condition.                        Instead, by arguing

that the district court failed to grasp the import of Hilkey’s

report,     Watson         is    challenging       only    the      district      court’s

synthesis of the evidence, not the existence of the evidence.

Indeed, Watson’s argument that Hilkey’s report establishes the

need for medication and supportive therapy effectively concedes

that the record contains evidence sufficient to establish that

Watson’s competency can be restored.

      Thus, without acknowledging what it is doing, the majority

disregards the argument actually made by Watson and resolves the

appeal     on   an    entirely       different     basis   involving        an   entirely

different kind of error -- the government’s failure to carry its

                                            48
burden of proof, rather than the district court’s failure to

properly synthesize the evidence. 5      Moreover, by reversing the

district   court’s   order   without   remanding,   the   majority   is

granting relief that no one has sought, as Watson does not seek

a reversal, but instead asks this court to vacate and remand for

further proceedings. 6

     It is well-settled that this court may affirm a district

court’s order on any basis appearing in the record.        See, e.g.,

Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982) (“[A]n appellee may

rely upon any matter appearing in the record in support of the

judgment below.”); Scott v. United States, 328 F.3d 132, 137

(4th Cir. 2003) (“We are, of course, entitled to affirm on any

ground appearing in the record, including theories not relied


     5 While the majority does note some deficiencies in the
district court’s order and briefly mentions the cumulative
effect of the errors it identifies, the opinion nonetheless
makes it clear that the majority is reversing for insufficient
evidence.   See Majority Op. at 2 (“In this case, we conclude,
the government has not met its burden of proving that
involuntary medication is substantially likely to restore
Watson’s competency.”); id. at 25 (“We therefore hold that the
district court clearly erred in finding that the government has
met its burden of proving, by clear and convincing evidence, . .
. that the proposed treatment plan, as applied to this
particular defendant, is substantially likely to render the
defendant competent to stand trial.” (internal quotation marks
omitted)).
     6 Although Watson’s opening and reply briefs ask us to
vacate without mentioning remand, counsel made clear at oral
argument that Watson is asking us to vacate the district court’s
order and remand for further proceedings.



                                  49
upon or rejected by the district court.”).              When it comes to

reversing a district court’s order, however, our discretion is

much more constrained.          As a general rule, this court does not

consider    non-jurisdictional       issues     that   are    not   properly

presented in an appellant’s opening brief, see, e.g., Suarez-

Valenzuela v. Holder, 714 F.3d 241, 248-49 (4th Cir. 2013), much

less issues that the appellant never even attempts to raise.

While we have the power to address issues not raised by the

appellant, see A Helping Hand, LLC v. Baltimore Cnty, 515 F.3d

356, 369 (4th Cir. 2008), we do not exercise that power in civil

cases    unless   the   issue    “establishes   fundamental    error   or   a

denial of fundamental justice,” In re Under Seal, 749 F.3d 276,

285-86 (4th Cir. 2014) (internal quotation marks omitted). 7

     The majority does not contend that the error it identifies

rises to the level of a fundamental error, nor does it otherwise

attempt to explain why the facts of this case justify such a

departure from our settled practice.            This court should not be

in the business of re-writing the parties’ briefs and raising

     7 Of course, “[w]hen an issue or claim is properly before
the court,” a reviewing court “is not limited to the particular
legal theories advanced by the parties, but rather retains the
independent power to identify and apply the proper construction
of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S.
90, 99 (1991) (emphasis added). This rule has no application in
this case because Watson does not challenge the sufficiency of
the evidence, and the sufficiency issue thus is not properly
before this court.



                                      50
issues     we   think     they      should    have     raised.        Watson   does    not

challenge       the    sufficiency       of    the    evidence   on     appeal,   and   I

believe it is improper in this case for the majority to reverse

the   district        court    on   an   issue       the   majority    has   raised    sua

sponte,    particularly          where    the      government    has    been   given    no

notice of the change in the direction of this appeal nor an

opportunity to address the issue the majority finds dispositive.

                                              IV.

      As discussed above, I do not believe the sufficiency-of-

the-evidence question is properly before us.                      But if it were, I

would disagree with the majority’s analysis.                           In my view, the

evidence before the district court was sufficient to support the

court’s    factual      determination         that     involuntary      medication     was

“substantially likely to render the defendant competent to stand

trial.”     Sell, 539 U.S. at 181.

                                              A.

      In    finding      the     government’s         evidence    insufficient,        the

majority focuses on our requirement that the government “show

that a treatment plan works on a defendant’s type of mental

disease in general, [and] that it is likely to work on this

defendant in particular.”                Bush, 585 F.3d at 816.              To show the

appropriate consideration of the defendant “as an individual,”

Evans, 404 F.3d at 240, the evidence must establish that the

experts recommending involuntary medication “actually considered

                                              51
[the defendant’s] particular mental and physical condition in

reaching       [their]      conclusions,”            id.         In    my    view,       Lucking’s

report,      fairly         read,       is     replete          with      evidence        of     his

consideration         of    Watson       himself          and    his    particular         medical

condition.

       According       to     the     majority,           the     entirety        of     Lucking’s

analysis       justifying         the      proposed         treatment         plan      was    that

“(1) antipsychotic            medication          effectively               treats       psychotic

symptoms;       (2)    Watson        has     psychotic          symptoms;         (3) therefore,

antipsychotic         medication        will     effectively           treat      his    psychotic

symptoms,”      an    analysis        the    majority           rejects      as    “nonspecific,

syllogistic reasoning.”              Majority Op. at 19.                I disagree.

       While    Lucking        did      note     in       his    report      that       “there    is

extensive support in the psychiatric literature that individuals

with the diagnosis of a psychotic illness obtain substantial

reduction       in     their        psychotic         symptoms         when       treated        with

antipsychotic medication,” J.A. 369, that was not the entirety

of his analysis when recommending medication.                                Lucking’s report

discussed delusional disorder in general, but also described how

the    disorder       presented         itself       in    Watson      and       the    nature    of

Watson’s delusions.               Lucking considered the general efficacy of

antipsychotic medications on psychotic illnesses generally, but

he    then   went     on     to     consider      the       efficacy        of     antipsychotic

medications      on    Watson’s         specific          condition     by       discussing       the

                                                52
limited          scientific        literature         addressing      the     treatment      of

delusional disorder, acknowledging studies to the contrary, but

noting that the more recent literature shows a high rate of

improvement in response to medication.                             Indeed, as Lucking’s

report       indicates,        the    Herbel       Study     shows     a    high    treatment

response         rate   by    patients       with     the    persecutory      subtype      (69%

restored         to   competency)         and    high     response    rates    by    patients

whose       delusions        had    persisted       for     approximately      as    long   as

Watson’s. 8           Lucking therefore supported his proposed treatment

plan       with    scientific        literature         involving     similarly     situated

patients          suffering        from     Watson’s      specific     disorder,      as     we

require.           See Bush, 585 F.3d at 816 (concluding that Herbel

Study did not “relate[] to the particular circumstances” of the

defendant with 13-year history of untreated persecutory type of

delusional disorder, because Herbel Study showed 25% recovery

rate       for     defendants        with       “duration     of     untreated      psychosis

greater than 13 years”); White, 620 F.3d at 421 (finding Herbel

Study to be of “limited assistance” in case involving female

defendant suffering from grandiose type of delusional disorder



       8
       As noted, Watson had been delusional for five or six years
prior to the district court’s ruling.      Nine patients in the
Herbel Study had been symptomatic for five years or less, seven
of whom (77%) were restored to competency.     Six patients been
symptomatic for seven to ten years before treatment, all of whom
(100%) were restored to competency.



                                                 53
because Herbel Study involved male defendants, only one of whom

had the grandiose form of the disorder).

      In addition, Lucking considered whether Watson was taking

medication      that    would      adversely    interact    with    his    proposed

treatment or had other medical conditions that would place him

at special risk for developing the more serious side effects or

preclude the standard treatment for managing any side effects.

Lucking also considered Watson’s beliefs about himself and his

illness when concluding that therapy would not be beneficial.

Cf.   Bush,    585     F.3d   at   818   (finding     proposed     treatment      plan

inadequate      where    it     recommended     medication       that    can     cause

diabetes      without    acknowledging        that    defendant    had    diabetes,

addressing how the medications would affect his diabetes, or

outlining a plan for controlling his condition).

      And     after     considering      all    the    circumstances,          Lucking

determined, in his expert opinion, that treating Watson with

risperidone was substantially likely to restore his competence.

As Lucking explained, it was the delusional beliefs that were

rendering Watson incompetent, and risperidone

      produces   beneficial   clinical    effects   such   as
      decreasing delusional beliefs. . . .      By decreasing
      delusional beliefs this decreases the influence they
      have on decisions, judgements, and perceptions.    This
      will allow Mr. Watson to make reasonable, rational,
      reality based decisions regarding the processing of
      his legal charges.    By decreasing delusional beliefs
      and   restoring   more   normal    thought   processes,


                                         54
        risperidone can improve the level                      of     communication
        between the client and his attorney.

J.A. 369.       Given the amount of detailed information contained in

Lucking’s report and testimony, I fail to understand how the

majority       can         reject     Lucking’s       analysis        as     “nonspecific,

syllogistic reasoning.”

        The    majority       contends       that    its     rejection       of    Lucking’s

evidence is warranted because his report and testimony failed to

      relate[] the proposed treatment plan to Watson’s
      particular medical condition. . . .          There is
      virtually nothing in Lucking’s report or testimony . .
      . that is sufficiently specific to Watson that it
      could satisfy the government’s burden of showing that
      Watson   is  substantially   likely   to  be  rendered
      competent by forcible medication, let alone meet the
      rigorous clear and convincing standard.

Majority      Op.     at    17-18     (emphasis      added).        While    the    majority

finds    the        government’s       evidence      insufficiently          specific,     it

provides no concrete example of how the evidence is inadequate

or   what     other       information       should    have     been     presented.         The

closest the majority comes to actually identifying the perceived

deficiencies         is     its     suggestion      that   the      evidence      failed    to

connect       the    proposed       treatment       plan   “not     only    [to    Watson’s]

medical       condition       but    also   [to]     his   age    and      the    nature   and

duration of his delusions.”                 Majority Op. at 16.

      As recounted above, however, the evidence in the record

does precisely that.                 The government’s evidence addresses the

efficacy of involuntary treatment of those with the persecutory

                                              55
form       of    delusional   disorder,       which   is    Watson’s     “medical

condition.”         The government’s evidence, particularly the Herbel

Study,      shows   success   in    treating    the   persecutory     subtype    of

delusional disorder and thus addresses the “nature” of Watson’s

delusions.           The   Herbel    Study     likewise     shows     success   in

involuntarily treated defendants whose delusions have persisted

approximately        as    long     as   Watson’s,     thus     addressing      the

“duration” of Watson’s illness. 9

       While the majority contends that the district court did not

explicitly address questions raised by Dr. Hilkey about whether

Watson’s        “particular   persecutory      delusions”     would   respond   to

medication, Majority Op. at 26, a failure by the district court

to address a given issue cannot be equated to a failure of

proof.      The evidence presented by the government provided bases

for the district court to conclude, despite the questions raised

by Hilkey, that the government’s proposed treatment plan was

substantially likely to restore Watson’s competency.                    Given the

wealth of information showing the government’s consideration of

       9
       As to age, the record shows that the government properly
recorded and reported Watson’s age in the relevant forms and
reports. Beyond the possible connection of age to the duration
of symptoms, however, there is nothing in the record suggesting
that a patient’s age is relevant to issues in this case.   That
is, nothing in the record suggests, for example, that older
patients are more prone to suffer from the side effects of
antipsychotics, or that patients of a particular age   are more
or less responsive to antipsychotic drugs.



                                         56
Watson’s specific diagnosed psychological condition as well as

his    physical        condition,      the        majority’s        rejection       of    the

government’s evidence simply cannot be squared with our highly

deferential standard of review.

                                             B.

       The majority draws support for its conclusion on Lucking’s

testimony at the Sell hearing that he would have recommended

risperidone      for     Watson     whether       or    not   Watson      had     previously

taken it.        In the majority’s view, this testimony shows that

Lucking’s       recommendation        “rested          not    on    any    individualized

assessment of Watson, but on the belief that ‘antipsychotics are

the   treatment     of    choice      for    psychotic        symptoms’      --    the    same

nonspecific, syllogistic reasoning we have previously rejected.”

Majority Op. at 24.

       Lucking’s risperidone recommendation was based on Lucking’s

belief that Watson had previously taken it without incident and,

as    discussed    above,      on    an     individualized          assessment       of   the

particular      disorder      affecting       Watson,         the    other      medications

Watson    was     taking,      and    whether          Watson      had    any     underlying

conditions that would cause or complicate the treatment of any

side effects.          Moreover, Lucking reached his recommendation by

relying   on     studies      involving      treatment        of    patients       suffering

from Watson’s specific disorder.                       Lucking’s recommendation was

therefore       based    on    a     consideration           of    Watson’s       particular

                                             57
diagnosis and physical condition.                   That Lucking also had more

generalized       reasons    to    chose       risperidone 10     does    not   somehow

negate     the   individualized         aspects     of       Lucking’s   analysis    and

render it insufficient as a matter of law.

                                           C.

      The majority also suggests that the government’s evidence

is insufficient because the academic literature relied upon by

Lucking     does     not    “bear[]       on     Watson’s        particular     medical

condition or circumstances,” Majority Op. at 17, and because of

“weaknesses” the majority perceives in the studies that support

Lucking’s conclusions, id. at 20.                Again, I disagree.

                                           1.

      As noted by the majority, not all of the studies cited in

Lucking’s        report     specifically          address        the     treatment    of

delusional       disorder,        and    not     all     of      those    specifically

addressing       delusional       disorder      show     a    positive    response    to

treatment by a majority of the patients.                      Nonetheless, Lucking’s

report discusses several studies, including the Herbel Study,

that provide clear support for the use of antipsychotic drugs in

the   treatment       of    delusional          disorder       generally      and    more

      10As Lucking’s report and testimony established, second-
generation antipsychotics are preferred over first-generation
antipsychotics because of their less-severe side-effect profile,
and risperidone is the only second-generation medication that
can practicably be administered involuntarily.



                                           58
specifically in the treatment of the persecutory form of the

disorder. 11

      While    the    studies    that    discuss    the   general    efficacy    of

antipsychotics in the treatment of psychotic illnesses may not

bear on Watson’s particular medical condition, I am perplexed by

the   majority’s      claim    that   the   other    studies   do   not   bear   on

Watson’s condition.           The issue in this case is whether Watson,

who suffers from delusional disorder, should be involuntarily

treated    with      antipsychotic      medication.        Lucking    relied     on

literature addressing the treatment of delusional disorder with

antipsychotic        medication,      including     the   Herbel    Study,   which



      11
       As the majority concedes, the Herbel Study “unequivocally
support[s] the involuntary use of antipsychotic medication to
restore the competency of defendants with the Persecutory Type
of Delusional Disorder.” Majority Op. at 20-21. In addition to
the Herbel Study, Lucking’s report discusses a 1995 article
reviewing 209 cases of delusional disorder being treated with
antipsychotics, which determined that 53% of the patients fully
recovered, 28% partially recovered, and 20% did not improve.
While there is no indication of how many of the patients
suffered from the persecutory form of the disorder, the study
revealed that “[t]reatment was positive regardless of delusional
content,” J.A 372 (emphasis added), thus indicating that the
persecutory form of the disorder is no less responsive to
medication.    And since the record establishes that “even a
partial response to antipsychotic medication can result in a
restoration of competency,” J.A. 370, the study’s 81% full-or-
partial recovery rate clearly supports Lucking’s opinion that
delusional   disorder   can    be  successfully   treated   with
antipsychotics.   Lucking’s report also discusses a 2006 study
involving eleven patients with delusional disorder, ten of whom
had a complete remission of symptoms after being treated with a
first-generation antipsychotic.



                                         59
studied    the        efficacy     in     the    prison       context      of    involuntary

medication       to    restore      the    competency        of     defendants     suffering

from    delusional          disorder.           The    scientific         literature       thus

directly addresses Watson’s specific condition and was properly

relied on by Lucking and the district court.                              Indeed, if these

studies do not bear on Watson’s particular medical condition, it

seems unlikely that any academic literature short of a paper

devoted entirely to the treatment of the actual defendant in

question    would       meet      the     majority’s      unexplained           standard   for

“bearing”     on       an     incompetent        defendant’s         particular      medical

condition.

                                                2.

       More troubling than the majority’s claim that the academic

literature       does       not   bear     on    Watson’s         particular      condition,

however, is the majority’s failure to give any weight to the

supportive       studies       when     determining          the    sufficiency      of    the

evidence before the district court.                      The majority concedes that

the    Herbel         Study       provides       unequivocal          support       for     the

government’s          proposed     treatment         plan,    but    it    dismisses       that

study as “vulnerable to bias in favor of finding a positive

response    to     treatment.”            Majority     Op.     at    21   (alteration      and

internal     quotation         marks      omitted).           The    majority      does    not

mention the other supportive studies, presumably because of the

unidentified “weaknesses” perceived by the majority.

                                                60
     The majority’s treatment of these studies, particularly its

rejection of the Herbel Study, fails to respect the limited role

of an appellate court applying clear-error review.                      The question

in this case is not whether the majority itself is persuaded by

Dr. Lucking and the studies he relied on, but whether there is

any plausible view of the record that clearly and convincingly

establishes the propriety of the proposed treatment plan.                          See

Anderson, 470 U.S. at 573–74.           And when answering that question,

we are required to view the evidence in the light most favorable

to the government, the prevailing party.                  See United States v.

Antone,    742     F.3d   151,   155    n.1    (4th    Cir.     2014)     (reviewing

district court’s order finding defendant subject to indefinite

civil commitment as a sexually violent predator).

     As    noted    above,    Lucking’s      report    discussed       studies    that

concluded   that     delusional      disorder,      including     the    persecutory

subtype,    can      be    successfully        treated        with     antipsychotic

medications, and he also discussed studies reaching the opposite

conclusion.      The      district     court     was     thus        presented    with

conflicting evidence about the efficacy of treating delusional

disorder    with    antipsychotic      medications,       a    conflict    that    the

court implicitly, but nonetheless undeniably, resolved in the

government’s     favor.      And     under    our   standard     of     review,   this

court is obliged to defer to the district court’s resolution of

the conflict.        See Anderson, 470 U.S. at 574 (explaining that

                                        61
deference to district court’s factual findings is required “even

when the district court’s findings do not rest on credibility

determinations, but are based instead on physical or documentary

evidence or inferences from other facts”).

       Rather     than       treating     the          positive         studies      as    evidence

supporting the proposed treatment plan, however, the majority

treats   the      conflict       in    the    evidence             as    an    opportunity      for

factfinding.           The    majority       weighs          the    conflicting           scientific

literature and declares it “equivocal,” and then rejects the

equivocal evidence as insufficient to support Lucking’s opinion.

This   approach        is    inconsistent          with       our       role   as    a    reviewing

court,     “for       our    function        is        not    to    reweigh         the    evidence

presented to the district court.”                            United States v. Charleston

County, 365 F.3d 341, 349 (4th Cir. 2004); see Ceraso v. Motiva

Enters., LLC, 326 F.3d 303, 316 (2d Cir. 2003) (“The weight of

the evidence is not a ground for reversal on appeal, and the

fact that there may have been evidence to support an inference

contrary to that drawn by the trial court does not mean that the

findings are clearly erroneous.” (citation omitted)).

       Moreover, the majority’s specific criticism of the Herbel

Study -- that it is vulnerable to bias -- provides no basis for

removing        the      Study        from        the        sufficiency-of-the-evidence

equation.         As   noted     above,       the       authors         of    the   Herbel    Study

acknowledged that “[s]tandard research methods to reduce bias,

                                                  62
such as random assortment to assigned treatment groups, the use

of a placebo control group, and blinded outcome measures, were

not possible” given that the study consisted of a “retrospective

inpatient       chart       review.”           J.A.    149-50.            These       criticisms,

however, could be levelled against all of the studies, positive

or negative, addressing the treatment of delusional disorder.

As the record makes clear, delusional disorder is very rare, and

there    are    no       controlled      studies      of     the   use     of       antipsychotic

medication          to   treat     delusional         disorder,      only       case       studies,

which yield “lower quality” evidence than do controlled studies.

      Notwithstanding             the    limitations         inherent          in    the   limited

available scientific literature, both Dr. Lucking and Dr. Hilkey

relied     on        the     available         literature          when        reaching         their

conclusions.             There is no evidence in the record raising any

question about the propriety of that reliance, nor is there any

other    evidence          that   otherwise      would       permit       us    to    reject     the

Herbel Study or the other studies supporting Lucking’s position

and     exclude          them     from    consideration            when        evaluating        the

sufficiency of the evidence.

      The majority suggests that the supportive studies would be

entitled       to    some       evidentiary      weight      if    there        had    been     some

“explanation or analysis applying their findings to Watson as an

individual.”               Majority      Op.    at     21.         However,          all   of    the

information necessary to apply to the findings of these studies

                                                63
to Watson is found in Lucking’s report, which makes it clear

that the studies involved the use of antipsychotic medications

to treat those suffering from delusional disorder, including the

persecutory subtype of the disorder.                Lucking’s report does not

use impenetrable scientific jargon when describing the studies,

and the district court was thus more than capable of reading

Lucking’s   report    and     drawing    its       own    conclusions      about      the

various   studies    discussed     in   the    report.        See,     e.g.,      United

States v. Bales, 813 F.2d 1289, 1293 (4th Cir. 1987) (explaining

that where the district court acts as factfinder, “the judge

weighs    the     evidence,     determines         the     credibility         of     the

witnesses, and finds the facts . . . [and] may select among

conflicting inferences to be drawn from the testimony”).                            While

it perhaps would have been helpful if Lucking had explicitly

testified   that     the      studies    addressed          the    very      condition

affecting Watson, his failure to do so cannot be grounds for

reversal when that information was otherwise presented to the

district court.

     When   the     scientific     evidence        is     considered      along      with

Lucking’s   report    and    testimony       and   viewed     in   the    light      most

favorable to the government, see Antone, 742 F.3d at 155 n.1, I

believe   that    evidence    is   sufficient        to    support     the    district

court’s order.



                                        64
                                          D.

       To the extent the majority’s real complaint is that the

government’s      evidence   is    not    compelling     enough   to   constitute

clear and convincing evidence as a matter of law, then I again

disagree.

      Evidence crosses the clear and convincing threshold if it

is “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.”       Springer, 715 F.3d at 538 (internal quotation marks

omitted).

      In my view, a factfinder could reasonably find the Herbel

Study more compelling and its conclusions more persuasive than

the earlier studies questioning the efficacy of medication for

delusional disorder.         As previously noted, ten of the seventeen

Herbel-Study patients restored to competency took three months

or longer to respond to the medication, a period significantly

longer than the medication trials involved in the earlier, more

pessimistic studies.         See J.A. 150 (“That 10 of the 17 patients

who   responded     to   treatment       required   continuous     antipsychotic

treatment for at least three months, and some up to five months,

was unexpected.          This result provides a plausible explanation

for    the   presumed     refractory       nature   of    delusional        disorder

                                          65
symptoms.”).         Moreover,          unlike      earlier      studies      of    voluntary

treatment for delusional disorder, the Herbel Study demonstrates

the efficacy of medication when the subjects are not permitted

to drop out of treatment.               Because the Herbel Study assessed the

success       of         involuntary           treatment          administered             under

circumstances largely identical to those at issue in this case

and     provides     a     reasonable      basis          for   discounting         the       more

pessimistic conclusions of other studies, I believe a factfinder

could     reasonably        find    that       the     Herbel         Study   clearly          and

convincingly       supports      the     government’s           position.          Cf.    United

States v. Gillenwater, 749 F.3d 1094, 1103 (9th Cir.) (O’Connor,

J.) (finding district court did not clearly err in accepting

testimony     of     Dr.     Lucking      over       defense       expert     who        “relied

exclusively     on       older   studies,”          when    Lucking      “relied     on       more

recent    studies        indicating       that      the    older      negative      view       was

mistaken”), cert. denied, 135 S. Ct. 222 (2014).

       Similarly,        there     is    evidence         in    the    record      making       it

reasonable for the factfinder to assign significant weight to

Lucking’s     recommendation.             As     noted     above,      Lucking      testified

that     he    had        involuntarily             medicated         approximately            ten

defendants suffering from delusional disorder, all of whom were

restored to competency.                 His personal success in treating the

same disorder as Watson’s, under the same circumstances that

Watson    would    be      treated,      could      reasonably         be   viewed       by    the

                                               66
factfinder as strong evidence that the treatment plan proposed

by the government was substantially likely to restore Watson’s

competency.

       The majority, however, dismisses the evidence of Lucking’s

experience           because    Lucking         provided   no    details       about    those

patients and we therefore do not know how many of his patients

suffered from the persecutory type of disorder or what type of

medication was used.                While more detail would be helpful, I do

not    believe         the     lack    of       detail   somehow    renders       Lucking’s

experience irrelevant, particularly since the Herbel Study shows

a   high    response         rate     for       all   delusional-disorder         patients,

including those with the persecutory subtype, and finds that the

presence        of    delusions       of    governmental        persecution      “does      not

appear to be a useful predictor of nonresponse to treatment.”

J.A. 149.        Because the factfinder would be entitled to consider

Lucking’s testimony in light of the other evidence presented at

trial, see, e.g., Davis v. Richmond, Fredericksburg & Potomac

R.R. Co., 803 F.2d 1322, 1327 (4th Cir. 1986), the findings of

the Herbel Study make the lack of detail in Lucking’s testimony

less   significant           than     the       majority   suggests.           Under    these

circumstances,          I    believe       it    is   improper   for     the    majority     to

refuse     to    consider        Lucking’s        testimony      about    his    experience

treating    defendants           with      delusional      disorder      as    part    of   its

evaluation of the sufficiency of the evidence.

                                                 67
      In    my    view,      then,    the     record    thus       provides    a   plausible

basis    for     the    factfinder      to     slide       extra    weight    over    to    the

government’s side of the scale and conclude that the evidence

clearly     and       convincingly          establishes       the     propriety      of     the

proposed treatment plan.                Although there is evidence supporting

a    contrary        conclusion       and     raising       questions      about      certain

aspects     of       the     government’s       proposed           plan,   that      contrary

evidence does not raise such substantial questions about the

government’s evidence as to render it insufficient as a matter

of   law,      but     instead       simply    creates       questions        of   fact     for

resolution       by    the    factfinder.           See,     e.g.,     United      States    v.

Heyer,     740    F.3d     284,   292    (4th       Cir.    2014)    (“[E]valuating         the

credibility of experts and the value of their opinions is a

function best committed to the district courts, and one to which

appellate        courts       must      defer.”        (internal       quotation          marks

omitted)).        I therefore disagree with the majority’s conclusion

that the government’s evidence was insufficient to carry its

burden of proof.

                                               V.

        I now turn to the merits of Watson’s argument that the

district court clearly erred by misinterpreting Hilkey’s report

and the need for supportive therapy in addition to medication.




                                               68
                                                 A.

      In its order, the district court acknowledged that while

Hilkey     “strongly         support[ed]         the     use    of    supportive        .    .    .

psychotherapy alongside pharmacological treatments, Hilkey “did

not   opine       in     his      forensic        evaluation         that    Dr.    Lucking’s

treatment     plan       will       be    unsuccessful.”              J.A.   340.           Citing

Lucking’s report and testimony, the district court held that the

proposed     treatment            plan    was    substantially          likely     to       render

Watson     competent         to    stand      trial,     and    the    court     granted         the

government’s       motion         to     involuntarily         medicate      Watson     without

requiring the government to provide supportive therapy.

      On appeal, Watson argues that the district court erred by

finding     that       Hilkey          only     suggested       supportive       therapy         in

addition to medication.                   Watson contends that Hilkey’s report

made it clear that medication must be combined with supportive

therapy     for        the     medication         to     succeed       in    restoring        his

competency.            Watson      argues       that     because      the    district        court

misunderstood          Hilkey’s        report,     the    district      court      never      gave

proper     consideration           to    the     evidence      contradicting        Lucking’s

evidence and thus clearly erred. 12                      See, e.g., Wooden, 693 F.3d


      12The majority touches on this issue in the course of
identifying various deficiencies in the district court’s order.
According to the majority, the district court “summarily
disregarded Hilkey’s report in its entirety, solely because
Hilkey failed to state expressly that the proposed treatment


                                                 69
at    454    (finding       clear     error        where    district       court   ignored

substantial amount of contradictory evidence).                             In support of

his   argument,      Watson      points    to       Hilkey’s     statement     that     “any

treatment approach be it pharmacological or psychological must

be offered in a supportive manner designed to mitigate the fears

of the individual being treated.”                        J.A. 383 (emphasis added).

According     to    Watson,       this    statement         “unequivocal[ly]”          shows

Hilkey’s     view    that     “[a]ny      treatment         must     be    offered     in   a

supportive      manner.             Otherwise,           forcible       medication      just

reinforces fears of persecution.”                   Brief of Appellant at 24.

      In my view, Hilkey’s report is much less conclusive on this

point    than      Watson    contends.             Regarding     supportive        therapy,

Hilkey stated that “[s]upportive therapy has been shown to be an

effective treatment” for delusional disorder, J.A. 382, and that

“[t]he      literature      on      treatment       of     persons      with   delusional

[disorder]      strongly         encourages         the    use     of     supportive    and




plan would not succeed.”    Majority Op. at 25.     The majority
contends that the district court thus failed to address Hilkey’s
questions about Lucking’s reading of the scientific literature,
Hilkey’s view that “the fixed, well established nature” of
Watson’s delusions made them “resistant to change,” J.A. 383, or
Hilkey’s belief that supportive therapy was required to maximize
the likelihood that medication would be effective.            As
previously noted, however, insufficiency of the government’s
evidence, not inadequacy of the district court’s findings, is
the basis for the majority’s reversal of the district court’s
order.



                                              70
cognitive       behavioral             psychotherapy          for        the    treatment      of

Delusional Disorder,” J.A. 384.                        Noting that “Watson has the

capacity to form a degree of therapeutic alliance should someone

attempt to do so,” Hilkey stated his “strongly held opinion”

that such supportive therapy “could increase the likelihood his

competency          could       be     sufficiently      restored.”             Id.     (emphasis

added).

          While it is apparent that Hilkey thought supportive therapy

was very important, the district court correctly observed that

Hilkey never directly stated that the proposed treatment plan of

medication without therapy would not work.                                 Indeed, Hilkey’s

statement that supportive therapy could increase the likelihood

of    success       suggests         that   medication    alone          has    at    least   some

likelihood of success.                 And the statement that Watson emphasizes

--    that     “any     treatment           approach    be     it        pharmacological       or

psychological must be offered in a supportive manner,” J.A. 383

(emphasis added) -- seems to implicitly acknowledge that there

are       supportive    and      non-supportive         ways        to    administer      either

approach       to    treatment,         medication       or     therapy.              Under   this

reading, Hilkey’s recommendation that medication be administered

in    a    supportive       manner      does    not    amount       to    a    statement      that

supportive therapy is required.                       Given the lack of clarity in

Hilkey’s      report,       I    cannot      find     clear    error       in    the     district

court’s conclusion that Hilkey did not opine that medication

                                                71
alone would not be effective to restore Watson’s competency.

See   Anderson,          470       U.S.       at     573-74      (factual         findings    are   not

clearly    erroneous           “[i]f          the     district         court’s      account    of   the

evidence       is   plausible            in     light      of    the     record      viewed    in   its

entirety”);         id.            at         579     (deferring             to     trial      court’s

interpretation of ambiguous testimony).

      Although       I        do        not     believe         that    the       district     court’s

interpretation           of        Hilkey’s          report      is     clearly       erroneous,      I

nonetheless agree with Watson that the district court’s findings

are inadequate to show that it properly considered the entire

range     of    evidence            relating          to    supportive            therapy.      While

Hilkey’s report is ambiguous as to whether supportive therapy is

required, the report unambiguously establishes that supportive

therapy is beneficial as an adjunct to medication in that it

can, inter alia, encourage compliance with the treatment plan

and help mitigate the persecutory fears that might otherwise be

exacerbated         by     the           government           forcibly        administering         the

medication.         Dr. Lucking made the same point in his report,

noting     that       “there             is         evidence”         that        psychotherapy      is

“beneficial to an individual with psychotic symptoms . . . as an

adjunctive treatment to the antipsychotic agents to improve such

things as insight, compliance, or coping skills.”                                    J.A. 375.

      The district court thus had before it evidence from both

the   government          and       the       defense      establishing            that     supportive

                                                      72
therapy is a beneficial addition to a medication-based treatment

plan for patients suffering from delusional disorder, with no

evidence raising any doubts about that conclusion.                                The court

also    had       before     it        Dr.    Hilkey’s        undisputed 13    opinion     that

including         therapy    in        the    treatment        plan    would   increase     the

likelihood that the plan would succeed in restoring Watson’s

competency to stand trial.                         The district court noted Hilkey’s

strong preference for using therapy along with medication, but

it did not acknowledge the additional benefits obtained when

supportive         therapy        is     added       to   a    medication      plan   or    the

medication-success-enhancing nature of supportive therapy.                                  And

while the district court noted Lucking’s view that therapy alone

would       not    help     Watson,          the    court     did     not   explain   why    it

determined that therapy should not be required in addition to

medication. 14




       13Lucking did not affirmatively state that therapy
increases the likelihood that medication will be successful, but
nothing in his report or testimony contradicts or raises
questions about Hilkey’s view.
       14
       Lucking testified that therapy alone would be ineffective
because delusions respond to medication, but not therapy, and
because Watson did not agree that he was mentally ill and would
not participate in therapy.    While using therapy as an adjunct
to medication would seem to eliminate at least a portion of
these concerns, Lucking did not address whether adjunctive
therapy would be appropriate in this case.



                                                    73
      In     my    view,    the      evidence       of    the    benefits      of    adjunctive

supportive        therapy       is,    at    the     very       least,      relevant      to   the

factual question of whether the government’s medication-without-

therapy plan was not merely likely, but “substantially likely,”

Sell, 539         U.S.   at    181     (emphasis         added),     to     restore      Watson’s

competency.          Given      the     sensitive         nature       of    “an    involuntary

medication order, which trenches upon the elemental individual

liberty      interest      in       refusing    the       invasive        administration        of

mind-altering medication,” United States v. Chatmon, 718 F.3d

369, 376 (4th Cir. 2013), it is important for the district court

to fully consider treatment options that maximize the likelihood

the treatment will succeed.                    And in this case, where there is

disagreement        over      the     medication-success-rates               in    the    limited

available scientific literature, but agreement among the expert

witnesses         that     adjunctive         therapy          can     increase       treatment

compliance, it seems especially important for the district court

to    give    explicit        consideration          to     the      value    of    adjunctive

therapy.          Cf. Herbel Study, J.A. 150 (“The real obstacle to

positive treatment response in delusional disorder may not be

the    intrinsic         biological         features      of     the      illness,       but   may

instead      be    the    difficulties         in    convincing          these     patients     to

adhere to an adequate trial of medication.”).

      While I do not suggest that the district court was required

to order adjunctive supportive therapy, the court was at least

                                               74
required to acknowledge the evidence establishing its benefits.

See Chatmon, 718 F.3d at 376 (“Of course, a district court need

not credit a defendant’s evidence or accept his arguments, but

its findings should offer some reason why it did not.”); Wooden,

693 F.3d at 454 (“Although the district court might not have

been required to accept that the evidence recounted above proved

Wooden’s ongoing pedophilia, the court was required to at least

consider     the    evidence,       and   account      for    it,     when    concluding

otherwise.”).       The district court’s failure to consider relevant

evidence     when    determining          that   the     government’s          plan   was

substantially likely to succeed means that the court’s factual

finding cannot be sustained.               See United States v. Francis, 686

F.3d 265, 273 (4th Cir. 2012) (“A court commits clear error when

it   makes       findings     without       properly         taking     into     account

substantial evidence to the contrary.” (internal quotation marks

omitted)); Jiminez v. Mary Washington Coll., 57 F.3d 369, 379

(4th Cir. 1995) (explaining that district court clearly errs

when it “disregard[s] substantial evidence that would militate a

conclusion contrary to that reached”).

                                           B.

     I    turn     now   to   the    question    of     remedy.         The    majority,

finding    the     government’s      evidence     insufficient,          reverses     the

district     court’s        order     without       remanding         for     additional

proceedings.        As I have explained, however, the sufficiency of

                                           75
the government’s evidence is not properly before this court.

Instead, the only issue properly before this court is whether

the district court’s factual findings are sufficient to support

the court’s substantially-likely-to-succeed conclusion.

      When an appeal turns on an error by the district court, the

proper remedy would normally be to vacate the district court’s

order and remand for further proceedings, so as to give the

district court the opportunity to reconsider the issue; only in

unusual cases would this court render judgment for a party after

identifying    an    error   by   the   district   court.     See    Pullman-

Standard v. Swint, 456 U.S. 273, 291-92 (1982) (noting that when

a district court fails to make required factual findings, “a

remand is the proper course unless the record permits only one

resolution of the factual issue”); aaiPharma Inc. v. Thompson,

296 F.3d 227, 235 (4th Cir. 2002) (noting, after finding error

by district court, that “[o]rdinarily, the proper course would

be to vacate the district court’s judgment and to remand,” but

concluding that “special circumstances allow us to put aside the

district court’s procedural error and render a decision on the

merits” (emphasis added)); see generally Chatmon, 718 F.3d at

376 (“Because the district court erred in its analysis of the

third Sell factor, we vacate the involuntary medication order

and   remand   for   further   findings.”);   Wooden,   693   F.3d    at   463



                                        76
(vacating      and   remanding       for   reconsideration           after       identifying

numerous deficiencies in district court’s factual findings).

     In    this      case,    the    record      is    not    so    one-sided       that    it

renders the district court’s error harmless, nor is there any

other reason to bypass the usual remand route. 15                            Accordingly,

because    I    believe      that    the   only       error    in    this    case    is    the

district       court’s    failure     to    address      the       issue    of    adjunctive

supportive therapy, I would vacate the district court’s order

and remand for further proceedings to permit the district court

reconsider the issue and make the findings necessary to support

its ultimate conclusion.

                                            VI.

     For       the   reasons        set    out    above,       I     believe      that     the

sufficiency of the government’s evidence is not properly before



     15 In the majority’s view, “remand is inappropriate because
the record permits only one resolution of the factual issue:
that this burden cannot be met.”         Majority Op. at 28-29
(internal quotation marks omitted).   For the reasons previously
discussed, I strongly disagree with the majority’s assessment of
the record.    Even if the evidence were insufficient, however,
this court in such circumstances has previously remanded rather
than reversed.       See Bush, 585 F.3d at 817-18 (finding
government’s   proof   deficient  in   several   respects    and
“remand[ing] this issue for consideration of further evidence,
if it is deemed appropriate, and findings by the court”); Evans,
404 F.3d at 242-43 (finding government’s evidence insufficient
to carry Sell burden and “remand[ing] with instructions for the
district court to reassess the motion after affording the
parties the opportunity to supplement the record in a manner
consistent with this opinion”).



                                            77
this court and that it is improper for the majority to reverse

the   district      court   on    an    issue       the   majority    has    raised    sua

sponte.         The majority’s reversal is particularly inappropriate

since the government has had no opportunity to brief the issue

or defend the sufficiency of its evidence before this court.

Indeed, counsel for the government will surely be surprised by

the outright reversal in this case, given that the only relief

sought     by    the   appellant       was    the    vacating   and    remanding       for

reconsideration        of   the   district         court’s   order.         Nonetheless,

even if the sufficiency of the evidence were properly before us,

I believe that the evidence is more than sufficient to survive

appellate       review.     And    as    to    the    issues    actually      raised    by

Watson, 16 I would vacate the district court’s order and remand


      16Watson also challenges the district court’s analysis of
the first Sell factor, which requires the government to show
that important interests are at stake that are not mitigated by
special circumstances. See Sell v. United States, 539 U.S. 166,
180 (2003).    Watson contends that he would likely succeed in
establishing an insanity defense, which would subject him to
civil commitment, see 18 U.S.C. § 4243(a), and that the district
court therefore erred by not treating that defense as a special
circumstance   that  mitigated  the  government’s   interest  in
prosecution. As the district court noted, however, an insanity
defense and the competency-to-stand-trial inquiry focus on
different questions, and there is nothing in the record
establishing or even suggesting that the delusions prevented
Watson from recognizing the wrongfulness of his actions.     See
United States v. Mackey, 717 F.3d 569, 574 (8th Cir. 2013)
(“That Mackey was delusional at the time of his arrest does not
necessarily mean that he could mount a successful insanity
defense.”).   I see no error in the district court’s conclusion
that the record established only the possibility that Watson


                                              78
for   reconsideration    and   additional   findings    by    the    district

court on the necessity of adjunctive therapy.

      Accordingly,   I    hereby    respectfully      dissent       from    the

majority’s   decision    to    reverse   the     district    court’s       order

granting   the   government’s    petition   to    involuntarily      medicate

Watson.




would assert and ultimately succeed on an insanity defense, and
that the mere possibility of establishing the defense did not
substantially undermine the government’s strong interest in
prosecuting Watson.   Cf. United States v. Evans, 404 F.3d 227,
239-40 (4th Cir. 2005) (explaining that the “unlikely future
civil confinement” of the defendant does not “make unimportant
the Government’s interest in prosecuting [the defendant] on the
serious charges against him”).



                                    79
