                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4616


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

     v.

BASIT JAVED SHEIKH, a/k/a Abdul Basit,

                Defendant – Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:13-cr-00305-BO-1)


Argued:   May 12, 2016                     Decided:   June 1, 2016


Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.



Affirmed by unpublished opinion. Judge Shedd wrote the opinion
in which Judge Wilkinson and Judge Motz joined.



ARGUED: Joseph Bart Gilbert, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.        Phillip
Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.     ON BRIEF: Thomas P. McNamara,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant.      John Stuart Bruce,
Acting United States Attorney, Jennifer P. May-Parker, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

     Based on his alleged attempt to join al-Nusrah Front, a

foreign terrorist organization designated by the Secretary of

State as an alias for the terrorist group al-Qa’ida, the United

States charged Basit Javed Sheikh in a single-count indictment

with violating 18 U.S.C. § 2339B. 1 After Sheikh underwent two

separate      pretrial    competency     examinations,   the     district   court

concluded that he is incompetent to stand trial and ordered him

hospitalized       to     attempt     competency   restoration.       Thereafter,

based    on      Sheikh’s     psychiatric     evaluation      and     refusal   to

cooperate with treatment, the United States moved for permission

to   involuntarily          medicate    him   to    restore    competency.      In

accordance with Sell v. United States, 539 U.S. 166 (2003), the

court conducted a hearing on the United States’ motion, during

which    three    medical     experts    testified.    The    court    thereafter

determined that involuntary medication is appropriate, but it

stayed    the     order     pending    Sheikh’s    anticipated      interlocutory

appeal, which is the matter now before us. For the following

reasons, we affirm.


     1Section 2339B(a)(1) provides in pertinent part: “Whoever
knowingly provides material support or resources to a foreign
terrorist organization, or attempts or conspires to do so, shall
be fined under this title or imprisoned not more than 20 years,
or both. . . .” The statute was amended in 2015 to change the
statutory maximum from 15 to 20 years, but Sheikh was indicted
in 2013, and he faces a 15-year statutory maximum.


                                          3
                                                I

      The parties agree that Sheikh suffers from schizophrenia

and is incompetent to stand trial unless he is medicated. “The

question    of       when   the     government         may   involuntarily    administer

psychotropic drugs to a defendant for the purpose of rendering

him competent to stand trial entails a difficult balance between

the   defendant’s          interest      in    refusing      mind-altering    medication

and society’s interest in bringing the accused to trial. The

Supreme Court recognized the weighty concerns on both sides of

this balance in Sell, noting that while individual defendants

possess     a        significant         constitutionally         protected      liberty

interest        in      avoiding          the       unwanted      administration         of

antipsychotic         drugs,       so    too    does    the    government     possess    an

important       interest      in    protecting         through    application     of    the

criminal law the basic human need for security.” United States

v.    Chatmon,       718     F.3d       369,    373     (4th   Cir.   2013)    (internal

punctuation altered).

      To resolve this question, courts apply a four-part test

established by Sell. Under this test, the government must prove

each of the following: (1) important governmental interests are

at stake and special circumstances do not sufficiently mitigate




                                                4
those interests; 2 (2) involuntary medication will significantly

further these interests by making it 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 assist counsel in conducting a

trial     defense;      (3)    involuntary        medication      is    necessary         to

further these interests and less intrusive means are unlikely to

achieve     substantially           the     same      results;         and     (4)       the

administration       of    drugs    is    medically      appropriate         and    in   the

defendant’s      best     medical     interests     in    light    of        his    medical

condition. Sell, 539 U.S. at 180-81.

       We have previously recognized that Sell orders “are a tool

that must not be casually deployed, for forced medication is a

serious intrusion upon the integrity of the individual and the

effects    of    such      medication      upon    body    and     mind       are    often

difficult to foresee.” Chatmon, 718 F.3d at 374. To minimize the

risk of an erroneous Sell decision, “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.” United States v. Watson, 793 F.3d 416, 420 (4th Cir.

       2“While
             the ultimate burden of proving an important interest
in prosecution always remains with the Government, we look to
the defendant to demonstrate that the special circumstances of
his case undermine the Government’s interest once it is
established that he stands accused of a serious crime.” United
States v. Mikulich, 732 F.3d 692, 699 (6th Cir. 2013).


                                            5
2015). Thus, when an issue involves fact-finding by the district

court, we require the government to prove facts by clear and

convincing evidence. Id. Additionally, we have emphasized that

in evaluating the government’s case for involuntary medication

under   Sell,     the    focus   must   be     specifically         directed   on   the

defendant: i.e., the test is “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.” Id. at 425.

     Because the first Sell factor involves a legal question, we

review the district court’s ultimate decision on that factor de

novo and any subsidiary factual determinations for clear error.

United States v. White, 620 F.3d 401, 410 (4th Cir. 2010). We

review the remaining three Sell factors – which are factual in

nature - for clear error. Id.

                                         II

     At    the    Sell    hearing,   the       United      States    presented    three

witnesses, each of whom was qualified as an expert: Dr. Brianna

Grover,     Dr.    Angela    Walden-Weaver,          and    Dr.     Alton   Williams. 3

Generally     speaking,      these      witnesses          testified    that     Sheikh

suffers     from        schizophrenia,         his      condition      will      likely


     3At the time of their evaluation of Sheikh, Dr. Walden-
Weaver was a forensic psychologist at FMC-Butner, Dr. Williams
was an FMC-Butner staff psychiatrist, and Dr. Grover had a
Masters degree in clinical psychology and was engaged in an
internship at FMC-Butner as part of her doctoral education.


                                           6
deteriorate over time without treatment, his lack of cooperation

has    hampered     attempts       to     treat       him,     and     he     should    be

involuntarily       medicated      with    anti-psychotic            medication.        The

United States also introduced the 15-page forensic evaluation

prepared by these witnesses, which detailed their diagnosis of

Sheikh, their attempts to treat him, and their recommendation of

involuntary medication. Sheikh cross-examined the United States’

witnesses but did not present any other witnesses.

       In the Sell order, the district court began its analysis by

summarizing       the      witnesses’      testimony          and     explaining        the

controlling       legal     principles.        The    court     then    prefaced        its

application of the Sell test by noting that the “crux of this

case   is   whether       the   government      has    a     sufficiently         important

interest in prosecuting Mr. Sheikh such that interference by

forced   medication        with   his   constitutionally            protected      liberty

interest     is    justified,       as     measured          against        any     special

circumstances        weighing       against           the      asserted           important

governmental interests in bringing him to trial.” J.A. 149.

       Addressing the first Sell factor, the court found that the

crime charged is serious because it involves terrorism and, if

convicted, Sheikh faces a 15-year maximum sentence. The court

thus held that “there is no doubt of the government’s important

interest in bringing Mr. Sheikh to trial.” Id. at 149-50. The

court then correctly recognized that special circumstances can

                                           7
mitigate      the    United    States’          important        interest,     and    it

considered     the    fact    that    Sheikh       had     been     in   custody      for

approximately 23 months. The court noted that 23 months “is not

an insignificant amount of time in custody” as a general matter,

but it found that 23 months “is not significant in light of . .

. the estimated sentences” Sheikh faces if convicted. Id. at

151.

       The court further considered as a special circumstance the

fact that Sheikh would likely be recommended for involuntary

civil    commitment      under       18     U.S.C.       § 4246     if     involuntary

medication was not ordered. 4 Noting, for that reason, that the

chance that Sheikh would be released into the community and the

United    States     would    lose    its       ability     to    prosecute     him   is

“minimal,” J.A. 151, the court concluded that the possibility of

civil commitment weighs against the United States’ prosecution

interest.     However,   the     court      also     concluded      that     the   civil

commitment     possibility     “alone       does     not    sufficiently       mitigate

that    interest,    particularly         given    the     nature   of   the    charges

here.” Id. at 152.

       Turning to the second Sell factor, the court found that the

record “convincingly demonstrates” that the United States proved


       4Dr. Walden-Weaver testified that if Sheikh is not
medicated, she would recommend his evaluation for § 4246 civil
commitment.


                                            8
that    the    administration        of    the    drugs      would     be    substantially

likely to render Sheikh competent to stand trial and that the

drugs    were    substantially        unlikely         to   have     side    effects      that

would significantly interfere with his ability to assist in his

own    defense.    J.A.     152.     The     court      pointed       to    Dr.    Williams’

testimony that antipsychotic drugs, including injectable Haldol,

are the “normal course of treatment for psychotic disorders,

specifically schizophrenia, and enjoy high rates of success.”

Id. The court acknowledged that it is “impossible to predict the

occurrence of side effects with 100% accuracy,” but it noted

that Dr. Williams’ testimony “established that the side effects

are rare and most are treatable.” Id. The court further stated

that    “the     experts      at    FMC-Butner          .    .   .    reported       several

contingency       plans     to     address       any    side     effects      that     arise,

including       decreases     in    medication         dosage,       use    of    adjunctive

medications       to      manage      side       effects,        or        treatment      with

alternative antipsychotic medication.” Id.

       Regarding the third Sell factor, the court found that the

United States proved that involuntary medication is necessary to

further its interests and less intrusive means are unlikely to

achieve substantially the same results. The court credited Dr.

Williams’ testimony that Sheikh’s inability and/or unwillingness

to    communicate      with      anyone    at     the       hospital,       including     his

therapists,       made      alternative           treatments          unlikely       to    be

                                             9
effective.     The    court     also      found    that     medication    is   the   most

effective treatment for schizophrenia, but Sheikh has refused to

take medication voluntarily.

        Finally, on the fourth Sell factor, the court found that

the United States proved that its proposed involuntary treatment

is medically appropriate. The court acknowledged that different

antipsychotic        drugs      may    have       different      side     effects     and

different success rates, but it credited Dr. Williams’ testimony

that antipsychotics are a typical treatment for schizophrenia

and that Haldol was medically appropriate in Sheikh’s case. As

the court explained: “The rates of side effects testified to by

Dr.     Williams     do   not      make     administration       thereof       medically

inappropriate,       particularly          given     the    expert    testimony      that

established that any adverse side effects that arise would be

promptly    treated       or   addressed      with    medication        changes.”    J.A.

154. The court also specifically addressed the individualization

of the protocol to Sheikh, discussing Dr. Williams’ testimony

that Haldol was the most appropriate drug because Risperdol,

which    has   advantages,       requires         ongoing    laboratory     testing    to

which Sheikh will not consent.

        Having thus concluded that the United States met its burden

under     Sell,    the     court      ordered      involuntary       medication      with

conditions tailored to Sheikh’s case. As noted, the court stayed

its order to permit Sheikh to pursue this appeal.

                                            10
                                           III

       In challenging the Sell order, Sheikh contends that the

government failed to establish three of the four Sell factors. 5

Considering      the    factors    out     of     order,      we    initially     reject

Sheikh’s      contention    that     the    government        failed    to   meet      its

burden of proving the second and fourth factors by clear and

convincing evidence. Based on our careful review of the parties’

arguments     and   the    record,    we    discern      no    clear    error     in   the

district court’s findings that (1) involuntary medication will

significantly further the United States’ prosecution interests

by making it substantially likely to render Sheikh competent to

stand trial and substantially unlikely to have side effects that

will   interfere       significantly       with    the   his       ability   to   assist

counsel in conducting a defense and (2) the administration of

drugs is medically appropriate and in his best medical interests

in light of his medical condition. 6 The court applied the proper


       5Sheikh
             does not challenge the district court’s finding on
the third factor – i.e., involuntary medication is necessary to
further the United States’ interests and less intrusive means
are unlikely to achieve substantially the same results. See
Brief for Appellant, at 19 (“The government has failed to
establish three of the four prongs required by Sell.”).

       6The
          United States notes in its brief that after the Sell
hearing,   prison  medical  staff  administered  two  separate
emergency doses of medicines because of Sheikh’s incoherent
yelling, acute agitation, and resistance to a scheduled cell
(Continued)
                                           11
legal principles and adequately explained its findings, which we

believe     are       supported     by     the    record.       See    Concrete       Pipe    and

Prods. of Cal., Inc. v. Construction Laborers Pension Trust for

S. Cal., 508 U.S. 602, 623 (1993) (explaining that the clearly

erroneous        standard     “is    significantly            deferential,         requiring   a

‘definite         and     firm      conviction         that     a      mistake       has     been

committed’”);           Chatmon,     718    F.3d       at     375     (explaining      that    a

district court commits clear error if it takes an erroneous view

of    the   controlling          legal   standard        or    makes        findings    without

properly taking into account substantial contrary evidence).

       We now turn to the first Sell factor. Sheikh correctly does

not contest the district court’s determination that the United

States has an important interest in prosecuting him. In Sell,

the Court stated that the government’s “interest in bringing to

trial an individual accused of a serious crime is important,”

539    U.S.      at     180   (emphasis       added),         and     we    have     previously

recognized        that    “the      central      consideration”            when     determining

whether a particular crime is serious enough to satisfy this

factor      is    the    maximum     penalty          authorized       by    the     applicable

statute,         Chatmon,     718    F.3d        at    374.     Although       we    have     not




rotation. According to the United States, in both instances
Sheikh’s mental state partially improved, and no immediate side
effects were apparent.



                                                 12
announced a “hard and fast rule,” our precedent establishes that

a crime carrying a statutory maximum of 10 years or more is

“serious” in this context. White, 620 F.3d at 410. Sheikh faces

a statutory maximum of 15 years, which unquestionably makes his

crime serious for purposes of the Sell test.

      In   light   of    the    United   States’       important     prosecutorial

interest, Sheikh argues that the district court erred by failing

to conclude that the possibility of his civil commitment under

§ 4246 is a special circumstance that negates the United States’

interest.    As    Sheikh      explains,      he   “faces     the    potential    of

indefinite    commitment,       functionally       a   life   sentence,    through

civil commitment proceedings.” Brief for Appellant, at 25. For

this reason, Sheikh asserts that the United States “need not be

concerned that [he] will be released to the public.” Id. Sheikh

further     asserts     that    the   United       States     does   not   need   a

conviction against him to demonstrate the seriousness of the

crime or to deter others because “[m]uch publicity has resulted

from the government’s prosecutions throughout the United States

of others who have attempted to travel to Syria and Iraq based

on their distorted interpretation of the Islamic faith.” Id. at

26.

      The Sell Court held that courts “must consider the facts of

the individual case in evaluating the Government’s interest in

prosecution. Special circumstances may lessen the importance of

                                         13
that interest.” 539 U.S. at 180. Moreover, the Court recognized

that     the    possibility          of    civil        commitment         may       lessen     the

government’s interest in prosecution, noting that a defendant’s

“failure       to    take    drugs    voluntarily            .   .   .    may    mean       lengthy

confinement in an institution for the mentally ill — and that

would    diminish       the    risks       that       ordinarily         attach       to    freeing

without punishment one who has committed a serious crime.” Id.

Continuing, however, the Court explained: “We do not mean to

suggest that civil commitment is a substitute for a criminal

trial.    The       Government       has    a    substantial          interest         in    timely

prosecution. And it may be difficult or impossible to try a

defendant       who    regains       competence          after       years      of    commitment

during which memories may fade and evidence may be lost. The

potential for future confinement affects, but does not totally

undermine, the strength of the need for prosecution.” Id.

        The district court concluded that the possibility of civil

commitment          weighs    against           the     United       States’         prosecution

interest,       but    that    possibility            “alone     does     not        sufficiently

mitigate that interest, particularly given the nature of the

charges here.” J.A. 152. In making this determination, the court

tended    towards       the    assumption             that   Sheikh       will        be    civilly

committed if he is not involuntarily medicated, noting there is

“minimal” chance that he would be released into the community or

that the government would lose its ability to prosecute him.

                                                 14
J.A.    151.    Sheikh       similarly      frames    his    argument,         confidently

asserting that because of the possibility of civil commitment,

the    United       States   “need    not    be   concerned       that    [he]       will       be

released to the public.” Brief of Appellant, at 25. 7 However,

whether      Sheikh    is    likely   to    meet     the    requirements            for   civil

commitment if he is not involuntarily medicated is a matter that

has yet to be litigated, and the record before us understandably

does not provide much guidance to predict the outcome of such a

determination.         See    generally      Mikulich,      732    F.3d        at    699       (“A

defendant is not required to manifest an absolute certainty of

future civil confinement in order to undermine the Government’s

interest       in    prosecution.      However,      this     does       not    mean       that

uncertainty will carry the day.”) (emphasis in original).

       Even if we assume for purposes of our decision that there

is a fair possibility of Sheikh being civilly committed if he is

not involuntarily medicated, we conclude that the United States’

prosecutorial interest is not sufficiently mitigated to preclude

involuntary medication. In White, we stated that in considering

the special circumstances issue, one pertinent factor is the

“nature of the crime,” and “[n]ot every serious crime is equally

serious.” 620 F.3d at 413, 419. In addition to the fact that

Sheikh faces a 15-year statutory maximum, which is a significant

       7Atoral argument, Sheikh’s counsel stated that                                     he    is
confident Sheikh will, in fact, be civilly committed.


                                             15
punishment, we find that the United States has a particularly

strong interest in prosecuting this case based on the nature of

the crime charged.

       “[T]he Government’s interest in combating terrorism is an

urgent objective of the highest order.” Holder v. Humanitarian

Law Project, 561 U.S. 1, 28 (2010). “Terrorism, whether real or

perceived, threatens our need for security,” United States v.

Onuoha,    ---    F.3d    ---,      ---    (9th       Cir.   2016),       and       “[t]he      real

risks, the real threats, of terrorist attacks are constant and

not likely soon to abate,” Boumediene v. Bush, 553 U.S. 723, 793

(2008). The pertinent criminal statute - § 2339B - represents

“the    considered       judgment     of       Congress      and    the    Executive            that

providing      material       support     to    a     designated      foreign         terrorist

organization       —   even    seemingly         benign      support       —    bolsters         the

terrorist activities of that organization.” Holder, 561 U.S. at

36.

       Given     the   importance         of    the    United      States’          interest      in

prosecuting       Sheikh,      we    cannot         agree    with     Sheikh          that       his

possible       civil     commitment        is       sufficient       to        override         that

interest.      Sheikh    is    certainly        correct      that     if       he    is    civilly

committed, he would not be released into the community. Although

that fact serves one aspect of the United States’ prosecutorial

interest, there is a more significant aspect that makes Sheikh’s

trial     important.      Specifically,             Sheikh’s       prosecution            for    the

                                               16
alleged conduct “conveys a message about its seriousness and its

consequences.” United States v. Bush, 585 F.3d 806, 815 (4th

Cir.    2009);    see   also   Onuoha,      ---   F.3d   at   ---    (“[G]eneral

deterrence for the benefit of society is served when a person is

convicted of a serious crime, thus deterring others from making

the same mistake.”). Sheikh attempts to downplay this interest,

arguing that the United States has prosecuted other individuals

for    similar     attempts    to     support     terrorist     organizations.

Regardless of any other similar prosecutions the United States

may have conducted, we are not persuaded that those prosecutions

diminish the importance of this one.

                                       IV

       We recognize that involuntarily medicating a defendant for

trial competency purposes is a “drastic resort,” White, 620 F.3d

at 422, and the instances in which such treatment is permissible

“may be rare,” Sell, 539 U.S. at 180. Given the importance of

the    United    States’   interest    in    prosecuting      this   case,   the

evidentiary record presented, and the district court’s careful

fact-finding, we conclude that this is one of those instances.

Accordingly, we affirm the Sell order.

                                                                        AFFIRMED




                                       17
